17 October 2012 - Security Council - The promotion and strengthening of the rule of law in the maintenance of international peace and security - Statement by Mr. Gérard Araud, Permanent Representative of France to the United Nations
myself with the statement that will be made by the
observer of the European Union.
I would like to thank Guatemala for having taken
the initiative of organizing this debate.
We have heard, in the opening statements, how
the International Criminal Court (ICC) has become an
increasingly active player in the multilateral system.
On 24 September, the General Assembly recognized,
in its Declaration of the High-level Meeting of the
General Assembly on the Rule of Law at the National
and International Levels (General Assembly resolution
67/1), the central role of the ICC for all States. That is of
course related to the growing number of States parties
to the Rome Statute — 121 to date. It is interesting
to see that the Court’s work, which often targets
very important persons, has not discouraged that
trend towards universalization. The Court represents
a guarantor of protection for all those who wish to
definitively turn the page on atrocities. We welcome in
that respect the announcements by Côte d’Ivoire and
Haiti, who will soon be ratifying the Rome Statute.
The signing of a partnership agreement between the
International Organization of la Francophonie and the
ICC will further enable such ratifications.
I would like to address the increasingly close and
mature relations between the Security Council and the
International Criminal Court. That is no surprise, as
the ICC, a permanent court with a potentially global
scope, is charged with intervening in times of conflict.
In that respect, the agendas of the two bodies overlap,
whether on Afghanistan, the Democratic Republic of
the Congo, Libya or Côte d’Ivoire.
The facts speak for themselves. The Office of
Prosecutor Fatou Bensouda is carrying out preliminary
studies, with enormous potential for prevention, in eight
countries and on four continents. It is also carrying out
investigations in seven countries. Seven of the countries
concerned have been discussed by the Council during
the past two years.
Nobody expected, however, such a swift evolution
in the relationship between the Council and the ICC.
It is worth recalling how it happened. Resolution
1593 (2005), on Darfur, contained the first referral
by the Council to the Court. That was followed by
the memorandum of understanding giving the United
Nations Organization Stabilization Mission in the
Democratic Republic of the Congo a mandate to support
the arrest of persons sought by the ICC upon the request
of the Government. Presidential statements increasingly
referred to the ICC, as did thematic resolutions,
including those on the protection of civilians, children
and armed conf lict, sexual violence, and the rule of
law. There have been increasingly in-depth discussions
between the Special Representative of the Secretary-
General for Children and Armed Conf lict and the ICC.
Then there was resolution 1970 (2011), adopted on
26 February 2011 under Chapter VII of the Charter,
referring the situation in Libya to the ICC. That was
a historic moment — a text adopted unanimously by
the 15 members of the Council, including those that
had not acceded to the Rome Statute. Lastly, there have
been increasing references to the ICC in geographicalresolutions, including the self-referral by the Offices of
the Prosecutor in Côte d’Ivoire and Kenya and States’
referrals, the most recent being resolution 2071 (2012),
Besides those documents, which now represent in
themselves a significant body of law, both the Council
and its subsidiary organs have effectively dealt with
requests for cooperation from the ICC.
I am thinking of the lifting of the travel ban on
Thomas Lubanga and, more recently, Laurent Gbagbo
by the sanctions committees so that they could be
transferred to The Hague.
Of course, there are disagreements and gaps. The
first and most obvious is the lack of referral to the Court
of a situation like that in Syria. As France declared in
March 2012 to the Human Rights Council, the extent
and nature of the atrocities committed in Syria and the
apparent lack of willingness of the Syrian authorities
to prosecute the perpetrators of those crimes warrant
a Council referral to the Prosecutor under article 13
(b) of the Statute. Silence has never served peace or
justice. The inability of the Council to demonstrate its
unity against mass crimes is, rather, an incitement to
the Syrian authorities to pursue the path of violence.
I take this opportunity to recall that the French
Minister for Foreign Affairs, Mr. Laurent Fabius,
has called for the establishment of a code of conduct
between the permanent members of the Council by
which they would undertake collectively not to use the
veto in situations where massive crimes are committed.
The second gap, which is more insidious, is the lack
of monitoring by the Council of its own resolutions. It is
not right that the Council, when it has made a referral to
the Court, should fail to guarantee consistent political
support for the Court and to react to instances of
non-cooperation to which the Court draws our attention.
It is not right for the Council to fail to apply the strict
guidelines issued by the office of Ms. Bensouda on
contacts with the accused.
Today’s debate therefore offers an opportunity to
move forward and think about concrete ways to make
the interaction between the Council and the Court more
efficient. How do we get more consistency and followup,
in particular with respect to arrests and instances of
non-cooperation? How do we get more dialogue?
First of all, we must contribute more to the
preventive role of the Court. That is what the Secretary
General is doing when he recalls that justice must follow
its course in all situations that have been referred to the
Court and when he asks his representatives not to meet
persons indicted by the ICC. That is what his Special
Representatives, Ms. Zerrougui and Ms. Bangura, do
when they refer to prosecutions against the perpetrators
of child recruitment and sexual violence. If we really
want to deter criminals and implement prevention, we
must be more of a sounding board for the activities of
the International Criminal Court.
Secondly, in the context of the sanctions regime,
we could consider not only a more automatic listing of
individuals who are the subject of an arrest warrant by
the International Criminal Court, but also an exemption
clause of the travel ban in cases transfer of an accused
to The Hague. Let us consider it.
Finally, in the area of cooperation, the subjects
are varied and range from requests for the freezing of
assets to issues related to the planning of arrests. The
Prosecutor and the President of the Assembly of States
Parties, Ambassador Intelmann, whose presence in the
Chamber I welcome today, have repeatedly called our
attention to those issues. The representative of South
Africa underscored in his statement the importance of
dealing with non-cooperation cases.
We could no doubt better organize our dialogue
in the informal working group on the model of what
we have done in the past with the ad hoc tribunals. We
could consider a change in the mandate of the informal
working group on the ad hoc tribunals to give it a
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