Register Friday | November 16 | 2018

The International Criminal Court on Its Best Behaviour

An interview with ICC president Philippe Kirsch

See also: Crime and (No) Punishment: A symposium on impunity and international justice.

Canadian ambassador to Sweden Philippe Kirsch was voted president of the International Criminal Court (ICC) on March 11, 2003, by the court’s seventeen other judges. Kirsch played a leading role in the drafting of the Rome Statute that established the court in 1998 and had previously chaired the ICC Preparatory Commission from 1999 to 2002. Born in Namur, Belgium, in 1947, Kirsch moved to Canada at the age of fourteen. He obtained a master of laws degree from the Université de Montréal and joined the Department of External Affairs in 1972. Due in part to Kirsch’s efforts, Canada signed the Rome Statute on December 18, 1998, and ratified it on July 7, 2000. The ICC formally opened on July 1, 2002, after sixty countries had ratified the Rome Statute. Since then, the number has grown to ninety-one. 

Journalist Matthew Walls interviewed Mr. Kirsch for Maisonneuve this past March.


Maisonneuve: What do you see as your role in the International Criminal Court?

Philippe Kirsch: One part is judicial, because I’m also judge of the chamber of appeal. But for the time being, before the prosecutor is elected, my role will be organizing the court, and the preparatory work that the judges and staff will do, so that by the time there are cases we will be fully prepared. Another role is to continue explaining the court . . . why it is a judicial institution, why it is helpful.

M: What do you think is the most important thing the public know about the ICC?

PK: The Rome Statute, I realize, is not very well understood. And you have, still, a lot of people who don’t really know about the principle of complementarity, which is fundamental. Or even non-retroactivity. There are still people who think of crimes that were committed thirty years ago, “Well, now we have an avenue to deal with them.” There are lots of expectations of the ICC, but not all of those expectations can be met because the statute is designed in such a way as to orient the actual court in a particular direction. And that is not always understood. The court is not and cannot be a political tool. It is a judicial institution.

M: How do you convince people of this?

PK: I think it’s very simple really. The statute is absolutely full of safeguards for the accused and for the states concerned—in addition, of course, to the protection of victims and witnesses. Every step of the statute requires extremely stringent standards. Let me give you an example: the prosecutor wants to start an investigation. He or she cannot do that by themselves. He or she has to ask an authorization from a pretrial chamber of three judges. If the pretrial chamber agrees, then the prosecutor has to notify the state parties—those that would normally exercise jurisdiction—that the prosecutor intends to start an investigation. If the states concerned say, “No, the ICC should not be involved because we are exercising our jurisdiction as we should,” then the prosecutor has to go back to the pretrial chamber and get a second authorization. If the pretrial chamber gives a second authorization, and either the accused or the states concerned object, then it goes to the appeal chamber, which is composed of five judges with no connection to the first three judges.

The system is really, really designed to deliver justice, and not be influenced by political considerations. The court brings an additional dimension to what states and non-governmental organizations can do.

M: What do you think it will require to persuade the countries that haven’t ratified it? I’m thinking of India, the USA, Russia as well.

PK: Well, certainly the first step is to demonstrate what I just said. That is the one argument always raised, that [the ICC] is going to be a political instrument. It cannot be. Once this becomes very clear in practice, and it will, then support will increase. . . . Universality is important in principle—it is, after all, a democratic court, a thing created by states, not for states, unlike any other international tribunal—and in practice, because the court’s jurisdictional system is pretty narrow, requiring the consent of certain states. You need as many states as possible to ratify, and you need the [support of the] Security Council. A lot depends on the way the court conducts itself, and that really is my top priority and efficiency.

M: What is the amount of separation between the Security Council and the ICC?

PK: The Security Council can refer a situation to the ICC. [However,] if the Security Council is managing a situation, under chapter 7 of the [UN] Charter, it can ask the ICC to refrain from exercising jurisdiction for a period of twelve months. The drafters of the statute had in mind, for example, particularly delicate negotiations being conducted in a peace process.

M: Why has Canada decided to sign the Rome Statute and thrown a lot of support behind it as well?

PK: You have to go back to the basics. [This is] the first international court that has the potential to deliver justice [worldwide] . . . The objective, beyond of course punishing criminals, is to create a culture of accountability to replace the culture of impunity . . . and eventually to send a signal to potential criminals, especially would-be leaders, that their life will become very difficult if they [act criminally]. The objective is not only to punish but to deter . . . and to facilitate reconciliation by deflecting responsibility from ethnic groups as a whole onto individuals. These are fairly broad objectives. They are not going to be realized overnight. But they are very important objectives and this is why Canada has always put its weight behind the court.

M: What is the significance in the short term and the long term of the USA not signing the statute?

PK: Well, the court can function without the United States. It has a lot of support from, for example, all the members of the European Union. In terms of its immediate functioning, the court is not going to be paralyzed. But obviously it would be in the interest of the court and the international community if the United States felt able to support the court. So again, we’re going back to what we were saying in the beginning, that the court behave in such a way as to alleviate American concerns that the court might be a political instrument. Once [that is] proved, then I think gradually there will be a relaxation on the part of those states that have reservations. Whether or not they ratify immediately, they can at least co-operate.

M: What will the court’s role be in developing international law? Will it evolve with the court’s existence?

PK: Well, obviously the court will create jurisprudence. But crimes are clearly stated as being crimes under existing international humanitarian law. The court has no power to create new law.

M: What kind of life will you have as a president?

PK: Very busy. The base will be in The Hague but clearly there will be some travelling required, not only to explain the court but also to keep in touch with other tribunals, visit states developing or implementing legislation to comply with their obligations under the statute, participating in conferences and things like that. I don’t want to spend all my time on the road . . . but it is part of the president’s function to do some outreach for the court and explain it.

M: Thank you very much for your time, Mr. Kirsch.

PK: You’re welcome.