The International Criminal Court in the city of peace, The Hague

Professor Dr. Sang-Hyun Song
Judge, International Criminal Court
The Hague, July 13, 2007

(송상현 재판관(국제형사재판소): ‘평화의 도시 헤이그에서의 국제재판소’)

I am honoured to speak a few words about the International Criminal Court (ICC) on the occasion of the centenary of the Korean patriot Yi Jun’s martyrdom.

The city of The Hague has gained its additional name: the Peace City, since it hosted a series of international peace conferences in the past century or so. Furthermore, when the Rome Statute establishing the ICC has selected The Hague as its seat in its Article 3, The Hague has quickly been proclaimed to be the legal capital of the world. Today I would like to talk about a little bit of how the ICC was born in 2002, how the court operates now and how the ICC is linked with the international peace conferences held in the Hague in 1907.

The past century witnessed enormous atrocities. Two World Wars devastated large parts of the World and led to extremely high casualties. According to the International Committee of Red Cross, in the past 60 years or so more than 86 million civilians have died in over 250 armed conflicts, and more than 170 million people have been stripped of rights, property and dignity. Most of them were women and children. Yet the perpetrators of these crimes often went unpunished. The situation was perplexing: It seemed that the graver the crimes, the unlikelier the punishment. It is against this background that the international community decided to found a permanent International Criminal Court (ICC) to bring to justice those who are responsible for the most serious crimes which are of concern to the international community as a whole.

An early but unsuccessful attempt to establish an international criminal tribunal can be found in the Versailles peace treaty of 1919. Despite the meagre practical results of the Versailles peace treaty, the idea to bring to justice war criminals continued to gain momentum. In the course of World War II the allied powers stressed that the crimes of the Axis powers would be punished. In the wake of the war, two tribunals were set up to try the major war criminals. The Nürnberg and Tokyo war crimes trials marked the birth of international criminal law as we know it today. The main message of these tribunals was famously put in the Nürnberg judgement: “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.” The idea of direct individual criminal responsibility was thus born.

The principles of the Nürnberg and Tokyo still form the cornerstone of international criminal law. In 1946, the UN General Assembly reaffirmed the principles and a year later requested the International Law Commission (ILC) to draft a Code of Crimes against the Peace and Security of Mankind on the one hand, and established a committee responsible for drafting a statute of a permanent international criminal court on the other hand.

However, the Cold War slowed down the evolution of international criminal law. The establishment of the ICTY and ICTR in the 1990s after the end of the Cold War proved once again that the time was ripe to dare an even more daunting task: The establishment of a permanent ICC. In 1990 the UN General Assembly requested the ILC to resume its work on an ICC. In June and July 1998, representatives of more than 160 states, 17 international organizations and more than 250 non-governmental organizations met in Rome to negotiate and discuss the ILC draft. After lengthy discussions the states finally adopted the Rome Statute of the ICC on 17 July 1998. It took effect on 1 July, 2002. The Rome Statute is one of the most successful international instruments in recent history and continues to receive growing support from states.

Let me briefly outline the structure and the operation of the ICC.

The eighteen judges of the Court constitute the principal judicial organ of the ICC, Chambers. In the election of the judges, the States Parties have to take into account the need for the representation of the principal legal systems of the world, equitable geographical representation and a fair representation of female and male judges. The candidates are either specialists in criminal law and criminal procedure or specialists in international law. Strict minimum voting requirements ensure that these criteria are respected during the elections. The 18 Judges work in three Divisions, namely the Pre-Trial Division, the Trial Division and the Appeals Division.

Seven judges are assigned to the Pre-Trial Division, and there are three Pre-Trial Chambers each consisting of three judges. Pre-Trial Chamber I has been assigned to the situation in the Democratic Republic of the Congo (DRC) and the situation in Darfur/Sudan, Pre-Trial Chamber II to the situation in Northern Uganda, and Pre-Trial Chamber III to the situation in the Central African Republic (CAR). The Pre-Trial Chambers have important responsibilities in the preliminary phases of a case and during investigations. Notably, it is a Pre-Trial Chamber that issues warrants of arrests and confirms the charges at the end of the investigation. The Pre-Trial Chamber may also authorise investigations of the Prosecutor. The confirmation of charges is an extremely important step in the proceedings, because the Pre-Trial Chamber has an opportunity to scrutinise the investigations and ensure that there is enough evidence against the accused. Since the pre-Trial Chamber I completed the hearing to confirm the charges against one accused early this year, trial for this person will start soon during the year.

The Trial Division consists of six judges who will sit in Trial Chambers of three judges each. On the basis of the charges as confirmed by a Pre-Trial Chamber, the Trial Chamber will determine whether the accused is guilty of the crimes in question and if so, what sentence should be imposed. Furthermore, the Trial Chamber may order appropriate reparations to victims, including restitution, compensation and rehabilitation

Five judges are assigned to the Appeals Division, who together form the Appeals Chamber. The Appeals Chamber will hear appeals against convictions, sentence, acquittals or reparation order and against certain other decisions of the Pre-Trial and Trial Chambers

The Office of the Prosecutor (OTP) is responsible for conducting investigations and prosecutions before the Court. The OTP receives and analyses a referral, or information about crimes within the jurisdiction of the Court from various sources. The OTP also cooperates with states and international organizations in the investigation phase, since the OTP has no police force. However, the OTP does have some investigators who investigate in the field. It is important to note that the Prosecutor must carry out his investigation objectively and must also look for exonerating evidence. Once the investigation is concluded, the Prosecutor will assess whether there is a sufficient basis to proceed with a prosecution.

The Prosecutor of the ICC commenced the first investigation of a situation in June 2004, relating to the atrocities committed in the DRC since the entry into force of the Rome Statute in July 2002. Particularly the Ituri region of the Congo has been devastated by a long-lasting armed conflict, leading to one of the world’s worst humanitarian crises. Earlier last year, Pre-Trial Chamber I issued a warrant of arrest against a leader of a Congolese political movement, who allegedly recruited and used child soldiers. The suspect was surrendered to the Court on the 17th of March 2006 and he is now awaiting the trial.

Uganda referred its situation to the Court in December 2003. In July 2004, the OTP announced its decision to commence an investigation relating to the situation in Northern Uganda, where the so-called Lord’s Resistance Army has for many years been involved against the Ugandan government and has apparently made extensive use of child soldiers. Pre-Trial Chamber II issued arrest warrants against five alleged leaders of the Lord’s Resistance Army. All five of them are still at large.

Uganda referred its situation to the Court in December 2003. In July 2004, the OTP announced its decision to commence an investigation relating to the situation in Northern Uganda, where the so-called Lord’s Resistance Army has for many years been involved against the Ugandan government and has apparently made extensive use of child soldiers. Pre-Trial Chamber II issued arrest warrants against five alleged leaders of the Lord’s Resistance Army. All five of them are still at large.

In addition to these three investigations, the Prosecutor in December 2004 received a referral of the situation from the CAR. A decision to commence an investigation in the CAR was recently announced by the OTP.

I would leave out other organs of the Court.

ICC has jurisdiction over four categories of crimes: Genocide, crimes against humanity, war crimes and the crime of aggression. Currently, the Court cannot exercise its jurisdiction over the crime of aggression because the States Parties have yet to agree on a precise definition of the crime and its relation to the UN Charter. But other crimes are well defined in the relevant International Conventions.

Furthermore, the Court may only adjudicate crimes that were committed on or after 1 July 2002, the day the Rome Statute entered into force. Different rules apply for states that have become parties to the Statute after this date. The Court may only exercise its jurisdiction if the crime was committed on the territory or by a national of a State Party to the Rome Statute. Only the UN Security Council may extend the jurisdiction of the Court to situations in states which are not party to the Rome Statute.

Key to understanding the role of the ICC is the complementarity principle in the Rome Statute. The underlying idea is that it is the primary responsibility of national criminal jurisdictions to bring to justice those responsible for the commission of the ICC crimes. The ICC will only step in if the states do not fulfil their obligations. That is why the ICC has been described as an “emergency court” or “court of last resort.” Therefore, the ICC will by no means replace national criminal justice systems, but will simply make sure that there is always the possibility of a perpetrator being tried before the ICC. The Rome Statute ensures that there is no impunity.

The Rome Statute gives victims a prominent role in the proceedings to facilitate their healing process. Victims can participate in proceedings and may present their views and concerns. The Court established a Victims and Witnesses Unit which is responsible for ensuring the well-being and protection of victims who come to the Court to testify and to participate in the proceedings. Protection of victims is one of the unique characteristics of the ICC.

The Rome Statute has also led to a consolidation of international criminal law. Whereas this field of law had been considered by many as late as the early 1990s a pious hope rather than a reality, this discipline now is one of the fastest-developing areas in international law. The Rome Statute reaffirmed the principle of individual criminal responsibility for the gravest crimes under international law. I am convinced that the ICC will live up to the high expectations of the international community and will put an end to impunity and to contribute to international justice and peace.

Is the ICC then relevant to all those legal norms concluded and adopted at the 2nd Hague Peace Conference of 1907 in any way, if so, how?

The Second Peace Conference took place in The Hague from 15 June to 18 October 1907 at the invitation of Tsar Nicholas II of Russia. The Conference was a continuation of the First Peace Conference, which had been held in 1899; the Final Act of the First Conference had contemplated the convening of a Second Conference to address unresolved issues. The Final Act of the Second Conference provided for a third peace conference, to be held in 1915. However, the 3rd conference was never convened.

At the Second Peace Conference in The Hague in 1907, 14 conventions were adopted, including the Regulations to Convention IV respecting the Laws and Customs of War on Land:

I would like to point out a few examples that strongly show how the Second Peace Conference of 1907 has influenced the birth of the ICC and is still linked with the court:

Firstly, among the conventions and the regulations concluded at the Second Peace Conference, the Hague Regulations concerning the Laws and Customs of War on Land (hereinafter: “Hague Regulations”) have a direct bearing on article 8 of the Rome Statute.

The Hague Regulations, which is an annex to the Convention IV, is still one of the fundamental instruments of humanitarian law and thus of great importance for the interpretation and application of the provisions on war crimes in article 8 (2) of the Rome Statute. Article 8 (2) (b) and (e) of the Rome Statute make explicit reference to the “established framework of international law”. Some of the war crimes listed in article 8 of the Rome Statute are directly derived from article 23 of the Hague Regulations

Secondly, other provisions of the Hague Regulations were later modified and further developed. They have become part of the Geneva Conventions of 1949 and the Additional Protocols of 1977, and have found their way into article 8 (2) of the Rome Statute.

Thirdly, the Second Conference reinforced the use of judicial mechanisms to resolve international disputes, e.g. through the establishment of an International Prize Court. Although no international criminal jurisdiction was established at the Second Peace Conference, it furthered the idea that international relations should be governed by law and that the law should be applied and enforced by international courts.

Furthermore, Convention XII relative to the Creation of an International Prize Court gave (limited) standing to individuals in proceedings before that Court. This is a relevant development because it showed that individuals may be subjects of international law, not mere objects. It could be said that this development eventually led to the notion developed by the Nuremberg International Military Tribunal that individuals may be punished under international law

One hundred years ago the Korean patriot Yi Jun had passed away after being denied entry to the 2nd Peace conference in The Hague. Some 96 years later, on March 10, 2003, at the same place another Korean took an oath as one of the first judges of the International Criminal Court that fully inherited the legal principles and the spirit of the Second Peace Conference. The city of The Hague has thus taken one of the most unforgettable places at the heart of Korean people as well as in the Korean history. Thank you very much.