Rome Statute drafter: No one at the time thought we would have a functioning ICC in only 20 years
By Danya Chaikel
The 20th-anniversary summer session of Salzburg Law School on International Criminal Law, Humanitarian Law and Human Rights Law (SLS) this year was chock-full of highlights and marquee speakers. The 2018 summer session in August, which I assisted in putting together, brought together students from around the world with a wonderfully diverse faculty (practitioners, judges, academics, diplomats, or NGO advocates) who shared their expertise with the students and each other.
These reflections are on the final summer session and insights from the experts on several critical issues this field is facing. This year celebrated the Rome Statute’s 20th year, and many of us are stepping back to review its positive impact but also the serious challenges that remain in closing the impunity gap. In light of the copious negative and often cynical commentary about this field and the ICC in particular, we seized the opportunity to ask some of the expert SLS faculty – who still work tirelessly with the Rome spirit – to give their unique insights on the following question: how can we revitalise the international justice project in the next 20 years?
SLS 2018 participants, Salzburg, Austria
According to Dr Astrid Reisinger Coracini, who has been closely involved in SLS since 2001 and is now the Director of SLS, this year’s summer session was bittersweet:
“After 20 years, SLS will take a break from its summer sessions. This will not be the end of SLS but a period to reflect about future research and training projects in this field. However, before that, in order to duly celebrate 20 years of the Rome Statute and 20 years of summer sessions, SLS will convene a 'Twentieth Anniversary Symposium: The Sound of ICL’, from18-20 October,” she revealed.
“The summer sessions of the SLS are a remarkable success story. From 1999 to 2018, more than 800 participants from around 120 states took part. SLS was the first summer course on international criminal law [ICL] founded in the aftermath of the adoption of the Rome Statute,” said Dr Coracini.
The fact that 2018 also marks the Rome Statute’s 20th year was on the top of everyone’s mind.
“This is an opportunity to reflect about the Court and the challenges it faces, said Coracini. “But it goes far beyond. The Rome Statute ended a hundred-year journey to codify international criminal law and to establish a permanent institution of international criminal justice. It is a vision of accountability materialised by way of treaty law. As we struggle on various fronts to effectively implement the Statute, we cannot lose sight of the underlying vision that should guide the interpretation of its terms. In the next 20 years, and as the activities of the Court increase, we need to defend the law as adopted in Rome against attacks of those that fall within its ambit. We have only started to get a taste of legal and policy campaigns against the Court by States and high state officials under scrutiny. This will not end. The success of the Court will depend on how the international community counters such attack, with vocal and effective practical cooperation. In this context, but also when it comes to further develop the substantive law of the Statute, we cannot allow discussions to be guided by the aim of shielding persons from individual criminal responsibility. We must take a stance for the values enshrined in the preamble of the Rome Statute and find back to a narrative as well as to a practice of a genuine fight against impunity.”
Partcipants give a wish list for the future of international criminal justice
SLS 2018: the overview
In its final year, SLS focussed on the enforcement of international criminal law – domestically through implementing legislation, establishing competent national organs, and the exercise of territorial as well as extraterritorial jurisdiction; and on an international level, as the ICC matures it continues to face limitations in terms of jurisdiction and resources. The 15-day session covered different generations of international courts and tribunals from the post-World War II military tribunals to the ad hoc and hybrid tribunals of the 1990s and the ICC, as well as the latest wave of hybrid institutions. With multiple actors within a global system of international criminal justice, coordination becomes paramount. Efforts to enhance effectiveness was another theme of the final SLS summer session, including domestic efforts, as well as initiatives to the strengthen international cooperation for crimes under international law, such as the draft Convention on Crimes Against Humanity and the initiative for a Mutual Legal Assistance Treaty for Core Crimes. SLS 2018 offered us many opportunities to debate current ICL developments and controversies, including the activation of the crime of aggression, the withdrawals of Burundi and the Philippines from the Rome Statute, the situation in Afghanistan, and the ICC Prosecutor’s successful request on whether the Court may exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh.
SLS 2018 opened with a bang with an inspiring keynote address from ICC Judge Kimberly Prost, a true ICL trailblazer. She energetically gave us a drafter's and a practitioner's view of the Rome Statute at 20.
Looking forward, she reminded us that the ICC is a court of last resort. In the face of atrocity crimes, too often the ICC is called upon to bring justice to the crimes. Even after excruciating negotiations on preserving national sovereignty through the principle of complementarity at Rome, nowadays when an atrocity crime is committed, is it too often that the first call is for the ICC to try these crimes. Rather, the very first question should be 'what is the territorial state or other extraterritorial jurisdictions doing about it?!’ Judge Prost also hopes that the newly activated crime of aggression is never used at the ICC, but rather that it acts as a deterrent to military leaders.
Another highlight was hearing from renowned Nuremberg Prosecutor Ben Ferencz in this personal video address to the SLS participants. In his impassioned speech he describes the details of his journey from poverty to investigating and prosecuting atrocity crimes.
He shared what he saw when investigating first-hand the horror of Nazi concentration camps as they were being liberated. Ferencz told us in tears, ‘there were dead bodies lying everywhere, couldn’t tell if they were dead or alive, their eyes speaking to you crying for help…I can’t avoid still being moved.’ He explained how these haunting early experiences shaped his thinking. ‘I have spent most of my life trying to convince people that it is not cowardice to compromise, and that you cannot kill an ideology with a gun. You have to have an understanding with those who have different opinions from you, and you need to find some peaceful way to settle your disputes. This is what the law is.’
“I’ve come to the conclusion that it will be up to the young people to not rely on the politicians or the diplomats but to assert their human rights to live in peace and dignity regardless of their political opinion, or their race, or their creed. We have to change our way of thinking, we have to change our hearts and minds [and change] the current system of sending young people out to kill other young people they don’t even know… I am confident that if you never give up and you recognise that law is better than war, that you will have a more humane and peaceful world than I’ve seen,” said Ferencz.
Danya Chaikel is a Hague-based Legal Consultant. This piece is part of series Justice Hub is publishing on the 20th-anniversary summer session of Salzburg Law School on International Criminal Law, Humanitarian Law and Human Rights Law (SLS). The other pieces in the series are linked below.