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LAW views

An unprecedented action of “unsigning" the ICC treaty DATO'

PARAM CUMARASWAMY
"I am deeply concerned by the United States of America's action in "unsigning" the Rome Statute of the International Criminal Court (ICC). Through my work as Special Rapporteur I have actively promoted and fought for the creation of independent and impartial judicial structures in all countries. Independent and impartial courts are a basic part of the framework for the legal protection of human rights and are one of the hallmarks of the rule of law. They are an indispensable element in the search for justice and the ending of impunity. Unfortunately, in my experience, these principles are not
respected in many countries. This is why the ICC is so essential for the prosecution of serious crimes described in the Statute.
The US Government asserts, inter alia, that the primary responsibility for prosecution lies with states. I agree. In fact, the Statute of the ICC recognises this clearly stating that cases will only be admissible where the state concerned is unwilling or genuinely unable to carry out the investigation or prosecution. Experience shows that in many instances this happens all too often, depriving victims of justice, leading to an unabated state of impunity and delaying the transition to democracy. The international community has acknowledged this in recent years through the establishment of ad hoc international courts as a means of achieving justice and promoting international peace and security, a process in which the USA has actively participated. However, fundamental to the existence of justice is the principle of equality. The ICC will eliminate the current arbitrariness of international prosecutions. They will become the rule rather than the exception. The US Government further asserts that a world of self-governing democracies is the best hope for a world without inhumanity. Again, I agree. However, experience has shown that despite all efforts in the last fifty-four years there are still many self-governing nations where the governments remain unaccountable and therefore not democracies.
The US Government asserts that the International Criminal Court will not be an accountable court. However, the ICC cannot be a rogue actor. It is bound by its statute and the law and members of the court can be removed in the event of proven misconduct.
Further, if prosecutions before the ICC are dependent on prior approval of the Security Council, which the US Government advocated during the negotiations for the Statute, then prosecutions will be politicised and the Court will not be perceived as independent. The Universal Declaration on Human Rights acknowledges that "recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world". Contrary to the US Government's assertion the ICC can make a contribution to the achievement of this goal. By this unprecedented action of "unsigning" the treaty the US Government has effectively forfeited its leadership role in the search for justice and the promotion and the protection of the rule of law and human rights in the international sphere".
Dato' Param Cumaraswamy is the UN Special Rapporteur on the Independence of Judges and Lawyers.