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David J. Scheffer
Ambassador-at-Large for War Crimes Issues

Statement Before the Sixth Committee of the UN General Assembly
New York City, October 18, 2000
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Agenda Item: The International Criminal Court

Once again, the Sixth Committee embarks on an important round of statements from governments about the status of our collective endeavors to establish an International Criminal Court. The United States applauds the many hard-working delegates whose dedication and intelligence have made the Preparatory Commission for the International Criminal Court a remarkable exercise of professionalism. Under the skillful leadership of Chairman Phillipe Kirsch, the Preparatory Commission is on schedule and on track. We look forward to the next round of discussions where for the first time the Relationship Agreement between United Nations and the Court, the Agreement on Privileges and Immunities, and the Financial Regulations will be examined and where important discussions will continue on the crime of aggression.

Last June delegations attending the Preparatory Commission reached consensus on two critical documents: the Elements of Crimes and the Rules of Procedure and Evidence. The United States delegation participated actively in the negotiations leading to the completion of these documents and we were pleased to join consensus on them. We are very grateful for the efforts made by all governments to undertake this difficult task and to reach agreement within a relatively short period of time.

We strongly believe the Elements of Crimes and the Rules of Procedure will stand the test of time, as they are consistent with customary international law and international standards of due process.

We acknowledge that a large number of governments have now signed the Rome Treaty of 1998 and that 21 States have ratified it. We deeply respect the commitment to the general principles of international justice shared by so many governments in the international community, a commitment which the United States has long stood for and made major contributions to realize. We have observed with some concern, as atrocities continue to consume various regions of the world, that the conduct of some nations still lags behind the principles that are reflected in the Rome Treaty. We have also observed that there continues to be some reluctance to properly address the serious violations of international humanitarian law that have occurred during the last few decades and which continue to the present day. The International Criminal Court will have no jurisdiction over those crimes. Yet, we strongly support States that recognize that they have an obligation to bring to justice in their courts those individuals who commit crimes that violate international humanitarian law. Without such a commitment, and in the absence of any international alternative, it is no solace to the victims of recent crimes that there is movement towards a permanent court that has only prospective jurisdiction. The strongest supporters of the International Criminal Court should be the most vigilant supporters of justice in our own time, and we remain confident that we can together meet this challenge.

The United States has long worked towards an effective International Criminal Court that will function efficiently and fairly. The United States also wants to be a good neighbor to the Court so that we can undertake important cooperative measures with the Court. To achieve these objectives, we strongly believe that a fundamental issue needs to be resolved at the November session of the Preparatory Commission. Unless there is a referral to the Court under Article 13(b) of the Statute, we believe there should be a means to prelude the automatic surrender to the Court of official personnel of a non-party State that acts responsibly in the international community and is willing to exercise and capable of exercising complementarity with respect to its own personnel. That is, indeed, what the Statute envisions. Such an outcome would open the door for the United States to become the good neighbor to the Court. This can be accomplished without harming the fair and efficient functioning of the Court or in any way undermining the integrity of the Rome Treaty.

We are open to discussions about how to resolve this fundamental issue. We need a clear articulation of the procedure to give confidence to non-party States that their good faith performance will be honored by the Court. We also need this articulation in order to encourage non-party States seeking to contribute responsibly to international peace and security that their tangible support remains welcome as the goals of international justice are pursued. Further, building this kind of confidence in the fairness of the treaty regime will, over time, encourage even more governments to join the Rome Treaty.

Achieving workable arrangements during the Preparatory Commission talks in November would enable the United States to cooperate with the Court in several areas when it is established. Indeed, in the future it may even be able to examine the merits of becoming a party to the Rome Treaty. If a workable arrangement cannot be negotiated at the next Preparatory Commission session, however, then we envisage a much more difficult relationship with the Court. We would, of course, evaluate our response to various scenarios. Nevertheless, a negative result at the next session could have a major impact on the ability of non-party States to participate in certain types of military contingencies, including those with critical humanitarian implications. Overall support for the Court would be diminished and the legitimacy of certain actions by the Court would be questioned by the very non-party States that otherwise would find good reason to support the Court. This need not be the case if reasonable terms are arrived at in the Preparatory Commission.

Let us not lose this opportunity while there is still time to strengthen the Court. We look forward to detailed consultations with governments in the weeks ahead.

Thank you.

[end of document]

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