The role of the European Parliament in democratic governance andhuman rights.

Current challenges of the ICC system of international criminal justice

Honourable Members of the International Court of Justice, members ofnational Parliaments, members of the European Parliament, Ambassadors,

Mr. Donfried, Director General of the Institute for Cultural Diplomacy,

Thank you so much for this extraordinary opportunity to share with thisdistinguished audience some thoughts about international justice andhuman rights.

Today, it looks crystal clear that, in our global world, the battlefield ofpeace and democracy is played, more than ever, by the rule of law and therespect to fundamental and human rights, opposite to the everyday-everywhere occurring crimes against humanity through all kinds ofintolerance, fanaticism and terrorism.

Only four weeks ago, the most deadly face of this scenario showed up inParis. Terrorist jihadism, or jihadist terrorism, is now stronger, morepowerful, better globally financed and organised than ever.

It is hatred against respect. It is living together in peace versus the will todestroy democratic values. As easy and dramatic as that.

Furthermore, transparency, efficiency in public action and fight against anyversion of impunity must lead all our efforts as public servants andrepresentatives. We are not here but to find solutions to the urgingdemands of justice and equality of all the citizens we represent and serve.

Let me please start with a brief general overview of the actions of theEuropean Union in promoting human rights and international law

standards in its external relations, including the specific role of theEuropean Parliament in this regard, in particular its Subcommittee onHuman Rights.

Some of the main tools used by the EU to promote Human Rights in itsexternal relations are the EU Guidelines on Human Rights, as well as theCommon Strategies, Joint Actions and Common Positions, theDémarches and Declarations, or the Human Rights Dialogues andConsultations with third parties.

The EU Guidelines on Human Rights are policy documents adopted by theCouncil. They cover issues of particular importance to EU Member States:Death Penalty (adopted in 1998); Torture and other Cruel, Inhuman orDegrading Treatment or Punishment (2001); Children and Armed Conflict(2008); Human Rights Defenders (2004), and International HumanitarianLaw (2009) to name a few.

In addition to that, through the European Instrument for Democracy andHuman Rights (EIDHR), which currently has an average annual budget ofsome €140 million, the EU funds a broad range of human rights projectsacross the world relating to the EU guidelines on human rights. The EIDHRprovides assistance without the consent of third country governments andother public authorities. Partners of the EIDHR are primarily internationaland local civil society organizations, without excluding internationalintergovernmental bodies with special expertise. In 2013 civil societyorganisations continued to be the main recipient of support from theEuropean Instrument for Democracy and Human Rights.

But I would like to especially highlight and remark the essentialimportance of the Human Rights Clauses in EU’s external agreements.

Since 1995, the European Community has sought to insert a human rightsclause in all agreements, other than sectorial agreements, concluded withnon-industrialised countries. The human rights clause makes human rightsa subject of common interest and part of the dialogue between the partiesand serves as a basis for the implementation of positive measures on a par

with the other key provisions in the Agreement. In the event of seriousand persistent breaches of human rights, the HR clause is an open windowfor members of the parliament to demand third countries to respecthuman rights, enabling one party to the Agreement to take restrictivemeasures against the offending party in proportion to the gravity of thebreaches.

I would like to introduce here a point of concern for your consideration:countries who want to join the EU have to meet the highest standards ofdemocratic governance and human rights, as stipulated by the so-calledCopenhagen criteria. But in recent years, the EU was unable and unwillingto discipline members who do not respect the rules: deportation of Romapeople, anti-gay laws, gagging and intimidating the media, underminingthe independence of the judiciary, clandestine mass surveillanceprogrammes, complicity in torture programmes, manipulation and abuseof electoral laws to eliminate opposition parties, impunity for corruption…In the absence of binding rules, the EU urgently needs effectiveinstruments to ensure all its members abide by the rules. Like the Stabilityand Growth Pact for the Eurozone, the European Union needs aDemocratic Governance Pact, upholding the Rule of law and FundamentalRights. My political group at the European Parliament, the Alliance ofLiberals and Democrats, is currently leading this initiative that I stronglysupport.

Regarding the role and contribution of the European Parliament and theSub-Committee on Human Rights in particularThe European Parliament contributes to the Union’s policies and monitorsthe work of other EU institutions. Resolutions adopted by Members of theEuropean Parliament help to raise awareness of human rights abuses.Resolutions may be a part of the legislative process, an outcome of own-initiative reports drawn up by parliamentary committees or the result ofthe human rights debates that usually take place on the Thursday sessionof each Strasbourg plenary to highlight flagrant violations of human rightsacross the world.

At the level of the committees of the European Parliament, issues relatingto human rights in the world are specifically dealt with by the Committeeon Foreign Affairs’ Subcommittee on Human Rights (DROI). TheSubcommittee maintains close working relations with the EuropeanExternal Action Service (EEAS), other EU institutions and human rightsNGOs, as well as multilateral human rights institutions. Through in camerabriefings and debriefings, the Subcommittee on Human Rights hascontinued to follow the human rights dialogues and consultationsconducted by the EEAS with third countries. Since 2013, DROI establisheda solid working relationship with the new EU Special Representative(EUSR) for Human Rights, including through the holding of regular publicexchanges of views regarding EU human rights policy.

Apart from the work done within the Subcommittee on Human Rights, theEuropean Parliament also seeks to achieve the extension of human rightsin its work, in accordance with the Articles in the EU basic treaties, whichdefine universal human rights and democracy as the founding values ofthe Union and as the core principles and objectives of the Union's externalaction. The Committee on Civil Liberties, Justice and Home Affairs (LIBE) isthe key actor on fundamental rights within the European Union, and it hasmajor responsibilities concerning external aspects of the EU’s internalpolicies, for example in the areas of migration and asylum policy.Constitutional and legal questions are dealt with by the Committee onConstitutional Affairs (AFCO) and the Committee on Legal Affairs (JURI),which consider, among other areas, EU accession to the EuropeanConvention on Human Rights, which will also have implications and impacton EU external relations.

The European Parliament, as the only directly elected EU institution, isstrongly committed to developing EU's policies in support of democracythroughout the world. The European Parliament’s committees as well asthe standing inter-parliamentary delegations conduct official delegationvisits to third countries. The joint parliamentary assemblies bring togetherMembers of the European Parliament and parliamentarians from thirdcountries to discuss common challenges, including human rights and

democracy issues. These assemblies are currently the ACP-EU JointParliamentary Assembly, the Parliamentary Assembly of the Union for theMediterranean, the Euro-Latin American Parliamentary Assembly and theEuronest Parliamentary Assembly.

And last but not least, the European Parliament’s Sakharov Prize forFreedom of Thought honours exceptional individuals who combatintolerance, fanaticism and oppression to defend human rights andfreedom of expression. The 2014 Sakharov Prize was awarded to Dr.Dennis Mukwege from the Democratic Republic of Congo.

By awarding this prize, the European Parliament acknowledges his overthirty years of admirable work struggling for women’s dignity, for justiceand peace in his country, giving medical, psychological and legal care tothousands of women and girls, victims of sexual violence, often forced tokeep silent to avoid being ostracised. Dr Mukwege unceassingly stressesthe need to fight impunity and prosecute the crime of mass rape, as it isused as a weapon of war and terror against innocent and fragile humanbeings. A strong signal to the government of the Democratic Republic ofCongo: the Congolese are thirsty for peace and justice. They can count onthe unrelenting support of the EU and the international community.

What is the real impact of the European Parliament resolutions, reportsand studies related to human rights?

The European Parliament is seen as the most principled and outspoken EUinstitution within the field of human rights. However, empirical researchsuggests that translating this visibility into tangible results — protectingindividuals and organisations and influencing third countries' policiesviolating human rights — remains an elusive goal. Many factors thatdetermine the impact of the Parliament in the field of human rights areexternal to the Parliament and beyond its control. Others, however, stemfrom a lack of coordination between the Parliament and the EuropeanExternal Action Service. Within the Parliament, factors that can influencethe organisation's impact include the level of coherence, consistency and

coordination of activities. To strengthen its effectiveness, the EuropeanParliament should make the following adaptations: strengthen contactswith civil society in third countries to reinforce the institution's position asa supporter of human rights; increase its internal coherence andcoordination across different instruments; exploit the powers granted bythe Lisbon Treaty to promote an effective and common EU human rightsstrategy and to have an effective and binding instrument, supplementaryto Art. 7 of the TEU avaiable to respond to situations of Member Statesnot complying with Art. 2 of the TEU.

From my point of view, the best way to serve human rights interest fromthe international law perspective is to strictly maintain independence andefficiency, avoiding any kind of misuse or misleading of its mission andactions.

International community –in particular governments, legislators at anational and supra national level, members of the judiciary, the legalprofession and legal scholars, representatives from global governanceinstitutions, NGOs specialized in human rights– must make every effort topreserve the impartiality and independence of the ICC and otherinternational criminal tribunals, and keep them away from any form ofpoliticisation. They come to existence to administer justice and not toadvance anyone’s political agenda.

International criminal tribunals are a relatively recent development ofinternational law, beginning with the Nuremberg Trials created seventyyears ago after the Second World War. They typically entail legalconsequences at the level of individual criminal liability rather than stateliability. They mean a great contribution to strengthen the rule of law, andavoid impunity. The ICC is today the most notable example of aninternational criminal tribunal.

The Nuremberg Trials refer to the international criminal tribunals createdby the Allied Forces –the US, the Soviet Union, the UK, and France– shortlyafter the end of WWII. They prosecuted and punished prominentmembers of the political and military leadership of Nazi Germany. Theirjudges and prosecutors were appointed by each of the countriesmentioned above. The Nuremberg Charter was a document constitutingthe tribunals and setting down the laws and procedures by whichthe Nuremberg trials were to be conducted.

The charter stipulated the crimes to be prosecuted. Three categories ofcrimes were defined: crimes against peace, war crimes, and crimes againsthumanity. Obedience to orders could only be considered in mitigation ofpunishment if the tribunal determined that justice required so.

The rulings and legal principles laid down by these tribunals were latercodified into the “Nuremberg Principles” which, in turn, were the basis forother international criminal tribunals constituted since then, as TheInternational Criminal Tribunal for the former Yugoslavia (ICTY),The International Criminal Tribunal for Rwanda (ICTR), The SpecialTribunal for Lebanon (STL).

I would like to point out some specific attributes of the Special Tribunalfor Lebanon. The STL’s eleven judges, a combination of Lebanese andinternational judges, are appointed by the UN Secretary General for arenewable term of three years. It is unique among international criminaltribunals in that it may hold trials in absentia. Further, it is the firstinternational criminal tribunal to deal with terrorism as a distinct crime.

In 2011, the STL established the elements of the crime of terrorism andlaid down the groundwork for its definition and codification in future:

“On the basis of treaties, UN resolutions and the legislative and judicialpractice of States, there is convincing evidence that a customary rule ofinternational law has evolved on terrorism in time of peace, requiring thefollowing elements: (i) the intent (dolus) of the underlying crime and (ii)the special intent (dolus specialis) to spread fear or coerce authority; (iii)the commission of a criminal act, and (iv) that the terrorist act be

transnational. The very few States still insisting on an exception to thedefinition of terrorism can, at most, be considered persistent objectors”.

The STL was chaired at the time by the reputed Italian jurist AntonioCassesse, whose impartiality and knowledge in the matter areindisputable.

Beyond these mentioned ad hoc tribunals, the International CriminalCourt (ICC) is a permanent tribunal

The ICC has jurisdiction to prosecute individuals for the crimesof genocide, crimes against humanity, and war crimes. As of 2016 it willinclude the crime of aggression. It is intended to complement existingnational judicial systems and it may therefore only exercise its jurisdictionwhen certain conditions are met, such as when national criminal courtsare unwilling or unable to prosecute criminals (“complementarity”) orwhen the UNSC or individual states refer investigations to the court. TheICC’s Prosecutor may initiate investigations on their own on the basis ofinformation of crimes within the jurisdiction of the court. The ICC beganfunctioning on July 1, 2002, the date on which the Rome Statute enteredinto force.

As we all know well, the Rome Statute is a multilateral treaty whichserves as the ICC's foundational and governing document. States whichbecome party to the Rome Statute by ratifying it, become member statesof the ICC.

The ICC has (i) territorial jurisdiction over crimes committed on theterritory of member states (including vessels and aircrafts registered inthat state) and (ii) personal jurisdiction over persons who are nationals ofmember states.

A state which is not a party to the Rome Statute can accept thejurisdiction of the ICC by lodging an ad hoc declaration with the Registrar.The requesting state may authorize the court to assume jurisdiction in

respect of crimes committed before the date on which the declaration wasfiled with the Registrar.

In respect of a new member state, the court will only exercisejurisdiction after the date of entry into force of the Rome Statute for thatstate, however, the requesting state may authorize the court to assumejurisdiction over crimes committed before that date by lodging adeclaration under Article 12.3. In no case the ICC shall assume jurisdictionfor crimes committed before the date of July 1, 2002.

Under Article 53.1 ICC the Prosecutor will initiate an investigationonce is satisfied that:

(1) the alleged crime committed, or being committed, is under thejurisdiction of the court

(2) the situation is not being investigated by the judicial system of astate (an ICC member state or otherwise) with jurisdiction over the allegedcrime (complementarity), and that the crime is of sufficient gravity. Issuesregarding complementarity and gravity make up the “admissibility”analysis.

(3) the investigation will serve the interest of justice

The ICC system has been subject to a wide array of critics, such as:

1. Many criticised the Rome Statute for conferring excessive powersupon the UNSC, whether to refer a situation to the court or, onthe contrary, to halt an ongoing investigation by the court. Forthem, these mechanisms provide too much leverage to the UNSCpermanent members over the court (nonetheless the UN and theICC, as said already, are legally separated).

2. African leaders raised objections to the ICC for theirdisproportionate focus on poor African countries, while beingremiss in addressing its attention to more powerful countries.

3. Others raised criticism to the Rome Statute for not defining thecrime of terrorism as a distinct crime. The reason given for thatomission was that “there was no consensus among theinternational community about the elements and criteria to definethat crime”. Prof. Cassesse, President of the Special Tribunal forLebanon (STL), as mentioned before, asserted that thesearguments were no longer valid and was critic to those very fewstates that insist on the impossibility of defining the crime ofterrorism. Israel signed the Rome Statute but withdrew from it in2002, inter alias, on grounds of the omission to include the crimeof terrorism in the Rome Statute. The odd outcome of this is thatleaders and soldiers of Israel –the state who has sufferedterrorism the most– may come themselves under the ICC’sscrutiny for the way they exercise the state’s right of self-defenseagainst terrorists, while the latter themselves may enjoy impunityfor being outside the ICC’s jurisdiction.

Being those previous considerations said, I think this is a goodopportunity to make a reflection on the most recent and controversialcase raised to the ICC agenda.

On Jan. 1, 2015, Palestine lodged a declaration under article 12.3accepting ICC’s jurisdiction over alleged crimes committed "in theoccupied Palestinian territory, including East Jerusalem, since June 13,2014".

On Sep. 2, 2014, however, almost three months before Palestinefiled such declaration accepting ICC’s jurisdiction under previouslymentioned Article 12.3, the Prosecutor Fatou Bensouda stated:

“On 29 November 2012, Palestine's status was upgraded by theUN General Assembly (UNGA) to "non-member observer State"through the adoption of resolution 67/19. The Office examined thelegal implications of this development for its purposes andconcluded that while this change did not retroactively validate the

previously invalid 2009 declaration lodged without the necessarystanding, Palestine could now join the Rome Statute”.

By anticipating Palestinian fulfilment of statehood criteria -which couldlead to a valid filing of a declaration accepting ICC's jurisdiction andPalestine becoming a new ICC member state- ICC's Prosecutor Ms.Bensouda prejudiced Israel.

I am far from being a specialist in law, but evidence shows that MsBensouda decided the matter of Palestine’s statehood without beinglegally entitled to do so. I would say she must have refrained fromrendering advisory opinions on matters that eventually can or cannotcome to her office. Her words seem to have clearly prejudiced Israel,anticipating opinions on crucial questions of fact and law, for they meantan improperly pro-active invitation for Palestine to join the ICC. Only uponreceiving a declaration under Article 12.3, the Prosecutor is bound todecide whether the requesting entity has met accepted criteria forstatehood for purposes of that provision.

The Prosecutor’s behaviour seems to have been out of place, as itwould have encouraged Palestinian leaders to use the ICC to advancetheir political agenda.

I would like to state again my main concern: the possible misuse of keyinternational justice resources meant to be devoted to its well-definedjudiciary mission, as well as the undermining of the ICC’s impartialityand credibility.

As a Member of the European Parliament, I consider necessary to remind

the audience some relevant excerpts of the European Parliamentresolution of 17 November 2011 on EU support for the ICC: facingchallenges and overcoming difficultiesE. whereas maintaining the independence of the ICC is crucial not only to

ensuring that it is fully effective, but also to promoting the universality

of the Rome Statute;

G. whereas pursuing the ‘interests of justice’ regardless of politicalconsiderations (Article 53 of the Rome Statute) is the founding principleof the Court; whereas the ICC plays a key role in promotinginternational justice and thus contributing to security, justice and therule of law, as well as to the preservation of peace and thestrengthening of international security;

S. whereas the EU and its Member States have been staunch allies of theCourt from its inception, offering continued political, diplomatic,financial and logistical support, including the promotion of universalityand defending the integrity of the Rome Statute, with a view toprotecting and enhancing the independence of the Court;

The European Parliament

3. Urges Parties and non-parties to the Rome Statute to refrain fromexercising political pressure on the Court in order to preserve andguarantee its impartiality and to allow for justice based on law, ratherthan on political considerations, to be dispensed;

32. Stresses the need for the ICC to expand its focus beyond situations ofarmed conflict and, more proactively, to investigate human rightsemergencies that escalate to the level of crimes against humanity, andsituations where domestic authorities are demonstrably unwilling toinvestigate, prosecute and punish alleged offenders;

Shouldn’t then all ICC resources and efforts be thoroughly focused onguaranteeing the achievement of those mentioned goals?

And, reached this point of development of the process, shouldn’t wewonder if Palestine is really interested in triggering judiciary investigationof war crimes? Or is it much more a political tactic to foster internationalsupport? Would these tactics not damage instead of paving the process ofpeace? Can we even talk about a "Palestinian state" that is capable ofbeing recognised? Or is it rather an artifice destined to become a newfailed state in a region where there are already too many? Will it become

another state where the most extreme ideologies would be funded andlegitimised?

Israel is strongly opposing Palestine to become a member of the ICC. USA

and Germany are deeply concerned on world peace, but only if it is builton an agreement which is based on the real questions underlying the

Israeli-Palestinian confrontation. If the ICC declares Palestine is not a

State, this will seriously damage the so-called advances on the peaceprocess. And if the ICC decided to start prosecution, it could start

investigating Palestinian military war crimes, as Israeli crimes could not beinvestigated as they are already in a judiciary process at Israeli Courts.

I have no doubt that the peaceful resolution of this conflict is one of thetop priorities in the international stage. Europe has to be relentless whenthe time comes to intervene and demand the fulfilment of allcompromises from both parties. But I can't see how any unilateralrecognition of the Palestinian state can help in the current context. Itdoesn't safeguard Israel's security. It doesn't stabilize an already turbulentscenario. And it doesn't encourage the essential need for democratic non-violent governments that respect human rights and promote thecoexistence of Arabs and Jews in the area.

From my point of view, the unilateral recognition of a Palestinian state andthe attempts to internationalise the conflict invalidate the Oslo Accordsand the bilateral negotiations that try to achieve a two-state solution -- asolution, do not forget, required and maintained by the European Union. Asolution that is our responsibility to make possible and feasible.

And finally, referring once more to the European Parliament resolution of17 November 2011 on EU support for the ICC:

whereas the universal nature of justice implies its even application, free ofexceptions and double standards; whereas nowhere should be a safehaven for those who have committed genocide, crimes against humanity,

extrajudicial executions, war crimes, torture, mass rape or forceddisappearances; whereas justice should be seen as an indispensableelement underpinning peace and conflict resolution efforts...

Let me end this questioning and (I hope) not too disconcerting speechsuggesting a concrete initiative for the progressive development ofinternational law in the matter of international criminal tribunals:definitively defining the crime of terrorism and including it in the RomeStatute so that it could come into the ICC’s jurisdiction for its effectiveprosecution worldwide. The STL, as explained, set the groundwork for thatdefinition.

Impunity cannot and must not be an option.