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Ministry Statements and Speeches 2012

United Nations Security Council - Peace and justice, with a special focus on the role of the International Criminal Court

Statement by HE Jim McLay, New Zealand Ambassador and Permanent Representative to the United Nations, 17 October 2012

Thank you, Mr President, for convening this debate.  We know how important these issues are for your country.  Guatemala has faced the awful realities of conflict, and the difficult challenges of post-conflict accountability; and you, personally, have been at the forefront of the fight against impunity here in New York.

This Security Council is, Mr President, a political body, charged with maintaining international peace and security.  But one of the most important lessons of the last two decades is that peace cannot be achieved in the absence of justice, nor can it be sustained in the absence of justice. When communities, even whole countries, are subjected to horrendous war crimes against innocent civilians, any subsequent peace will be very difficult to sustain unless the perpetrators of those crimes are held accountable.

So, it is not sufficient, Mr President, for this Security Council to focus only on politically pragmatic solutions.  It must also systematically apply the justice and accountability mechanisms that are now available to the Council.
The ICC is now an important feature of that justice and accountability landscape – so it is very timely indeed to address the relationship between this Council and the International Criminal Court (ICC).

Mr President –

During its last term on the Security Council, New Zealand played important roles in the establishment of the first two international criminal Tribunals, the ICTY and the ICTR; and we have been a very strong supporter of the ICC since the idea of a permanent tribunal was first mooted.

Sadly, we know that there will, in the future, be cases where the Security Council should again use its power under the Rome Statute to refer a case to the ICC.  But we are also firmly of the view that, when the Council does make a referral to the ICC, it should do so with a clear commitment to follow through and to ensure the Court receives the necessary cooperation; in which regard we endorse the statement from Liechtenstein on behalf of former Presidents of the Assembly of States Parties.

Moreover, New Zealand believes that, where the Council has referred a matter to the ICC, it should also, and as a matter of course, establish a Working Group to monitor and follow up the case.

The Council already has a Working Group on the Tribunals, and it needs to devote at least as much effort to those cases it has initiated with the ICC. 

Moreover, it should not encroach on the prerogative of the General Assembly to decide on funding for those situations that have been referred to the ICC.  And this Council should never refer a case to the ICC simply because of political outrage at an intractable problem, or because it has no other political strategy to deal with it.  And, like Brazil, we believe the Council should not use its powers under the Rome Statute to shield nationals of states which are non-parties to the Statute.

Mr President –

Both the Security Council and the ICC will suffer damage to their credibility if referrals are perceived to be politicised or if justice is seen to be discriminatory.
In this regard, I reiterate New Zealand’s call in last month’s General Debate for the permanent members of this Security Council voluntarily to agree not to use their veto in situations involving mass atrocities.

Mr President –

As I said earlier, New Zealand is a very strong supporter of the ICC.  It is, however, a Court of last resort, with jurisdiction only where national courts are unwilling or unable to investigate and prosecute. 

There will be times when the ICC is not the best mechanism to be applied in a particular case; and it is clear that, even where it is the appropriate mechanism, the timing of its application needs to be carefully judged, particularly in situations of on-going conflict.

It seems to us that, in the future, this Council will need to think very seriously about a number of questions, especially in situations where violent conflict is continuing.  Issues for possible consideration include whether an ICC reference might be an incentive or a disincentive to a peace settlement – including whether there is a risk of prolonging the violence, resulting in yet more victims; and also the likelihood that any indictees can actually be brought to trial (particularly, the willingness of this Council to ensure that indictees are brought to trial)?  The extent of cross-regional support for the decision might also be a factor.

Finally, Mr President, New Zealand also emphasises that experience in  criminal justice – whether national or international –  shows that credible restorative justice processes can also help promote accountability and build sustainable peace in societies emerging from conflict.  We have seen this in your own country, Guatemala, with “CICIG”, in South Africa and Sierra Leone with their “Truth and Reconciliation Commissions”, in Rwanda with the “Gacaca Tribunals” and, in places such as Timor-Leste, with even more nuanced solutions.  The Security Council should respect the fact that conventional judicial mechanisms are not the only credible ways of establishing accountability in post conflict situations and, when appropriate, it should encourage such mechanisms.
For New Zealand, the establishment of the ICC was a most welcome development, and it has our strong, ongoing support.  In this, the Court’s tenth year, it is now clear that it is a hugely valuable resource for the international community in its efforts to deter and to ensure accountability for the most serious crimes, as well as bringing an end to impunity.

But, as with all such resources, we must be careful in its application, and we must be wise in its use.

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Page last updated: Wednesday, 09 January 2013 14:49 NZDT