The Prosecutor of the International Tribunals for the former Yugoslavia and for Rwanda, that the International Permanent Court ''be strong and well equipped to operate as an authoritative mechanism''

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The prosecutor of the International Tribunals for the former Yugoslavia and forRwanda, urges that the international permanent court "be strong and well equipped to operate as an authoritative mechanism"

"A weak and powerless institution will betray the very human rights ideals that will have inspired its creation, and may be considered a retrograde development"

Addressing on Monday 8 December 1997 in New York the Preparatory Committee on the Establishment of an International Criminal Court, Justice Louise Arbour, Prosecutor of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), welcomed a permanent criminal court "as a timely consolidation of international law, consistent with the creative search for peaceful and effective measures of conflict prevention and resolution" provided that "such a court be strong and well equipped to operate as the authoritative mechanism through which an individual may be deprived of his or her liberty"

If not, warned Justice Arbour , the permanent criminal court would be "a weak and powerless institution" which "will lack legitimacy (...), will betray the very human rights ideals that will have inspired its creation (...) and may be considered a retrograde development as it will not only fail to dispense fair justice , but it may exacerbate the sense of legitimate grievance of the disenfranchised". Should it be the case, Justice Arbour said that she is "not persuaded that a weak court is better than no court at all".

Prosecutor of both the ICTY and the ICTR since October 1996, Justice Louise Arbour drew from her experience to identify three areas on which the Preparatory Committee should focus.

"The need for an independent and effective Prosecutor"

Justice Arbour stated "unequivocally at the outset" that "there is more to fear from an impotent than from an overreaching Prosecutor: (...) an institution should not be constructed on the assumption that it will be run by incompetent people, acting in bad faith for improper purposes. (...)The powers of the Prosecutor, and of the Court itself, should be designed in a manner consistent with the effective enforcement of the statute. (...) Without trivialising the effects of the charging process itself, it remains that if unfounded charges are laid, the accused will be acquitted. But if persons guilty of crimes within the statute are out of reach of the Prosecutor, the very purpose of the statute will be defeated".

She went on pointing out that "the taxing experience of my office suggests that it is more likely that the prosecutor of the permanent court could be chronically enfeebled by inadequate enforcement powers combined with a chronic and widespread unwillingness of States parties to co-operate (...) Yet, much of the evidence relevant to proving the crimes will be located in States which were the most affected by the conflict, and by the crimes themselves. Many potential witnesses will have been internally displaced or will reside on occupied and seceded territory".

It is therefore crucial that "the prosecutor of the permanent court should have unhindered and direct access to all potential evidence, be it documentary or other physical evidence, or witnesses" (...) without the court being "forced by the statute into dependency on national authorities. (...) Subject to legitimate national security concerns, which should be adjudicated upon by the court, governments should not control, nor should they be perceived to be controlling the prosecutor’s access to relevant evidence. The prosecutor should be granted free and unsupervised access to all witnesses, including, if need be, government employees or members of the military".

" A maximum prosecutorial discretion"

According to Justice Arbour, "the prosecutor should be able to initiate investigations ex officio based on reliable information received from any source.(...)this would best enable the prosecutor to make a non-political, independent and professional selection of cases based on relevant legal criteria(...)".

Even if the statute of the permanent court was to require a complaint or referral for the jurisdiction of the court to be triggered, "maximum prosecutorial discretion should still be preserved. For instance, it would be appropriate to mandate the Prosecutor to investigate and prosecute offences related to a particular conflict, but not to mandate the prosecutor to investigate offences allegedly committed by one side only to the conflict"

In Justice Arbour’s view "the greatest threat to the legitimacy of the permanent court would be the credible suggestion of political manipulation of the Office of the prosecutor, or of the court itself, for political expediency (...)".

" A specific reference to sexual violence"

Making a few observations concerning the subject-matter jurisdiction of the permanent court, Justice Arbour suggested first that "the statute include war crimes committed in internal conflicts and that, to the extent international law allows, the same types of conduct be prohibited in all types of conflicts (...) Most modern conflicts are either internal or mixed in nature (...)".

The Prosecutor also suggested "that the statute should make specific reference to sexual violence, in a manner consistent with contemporary understanding of such offences as crimes of violence against the person.(...) it is appropriate to include a reference in the war crimes provision as well as in the crimes against humanity provision. This explicit codification of sexual violence should not distract from the discretion of the Prosecutor to characterise the conduct under any other appropriate heading under the statute".

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International Criminal Tribunal for the former Yugoslavia
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