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Ministry Statements and Speeches 2013

Report of the International Criminal Court

Statement 2013 delivered by H.E. Mr Jim McLay, Permanent Representative of New Zealand 31 October 2013

Mr President –

New Zealand thanks President Song for his report, and pays tribute to his ongoing service to the International Criminal Court (ICC).

New Zealand has traditionally been a strong supporter of the Court.  We have invested in the success of international judicial mechanisms, particularly the ICC; and we have been active in encouraging wide membership of the Rome Statute, including through work to that end in our Pacific region. We continue to urge widespread membership of the statute.

New Zealand is committed to the principle of accountability and to the fight against impunity.  We also recognise that there are a variety of ways to address grave crimes committed in conflict situations, and to rebuild communities after the commission of atrocities.  

National courts have primary responsibility for the prosecution of international crimes, and New Zealand supports a focus on complementarity. We have also seen the real value and sense of alternatives to formal judicial processes, such as truth and reconciliation commissions.

Moreover, in particular situations, regional Courts also make a lot of sense.  These are complementary to both national and international mechanisms.  In this regard New Zealand is pleased to be involved in supporting the development of the African Court of Human and People’s Rights.

This diversity of judicial and non-judicial responses to allegations that grave crimes have been committed in conflict situations shows us that every situation has its own complex dynamics. There is no single, right answer.  Finding a sustainable solution in a particular conflict situation, which is almost inevitably riven with politics, requires much more than technical application of criminal law.

Mr President –
We cannot hide from the reality that the ICC is currently facing the strongest challenge of its ten-year existence.  New Zealand recognises the very real concerns of the African Union and Kenya; and believes that those concerns require careful and serious consideration.

We see these current challenges to the Court as an opportunity to put the ICC on a more solid footing, so that it can continue to serve the international community into the future.  The independence and impartiality of the Court and its processes are of utmost importance and must be protected.  However, as States, we have the responsibility to engage in open dialogue on these challenges.  Most importantly, we should be prepared to signal when we think changes are required. 

When a Court loses credibility in the eyes of a large sector of community opinion, then those with political and legislative responsibility have a right, and a duty, to act to restore that credibility and effectiveness.

To this end New Zealand believes that there are ways in which the Assembly of States Parties can and should respond to the concerns of those States Parties who have raised concerns.  States Parties, both individually and acting collectively through the Assembly of States Parties, have a responsibility to shoulder some of the burden for making the ICC work effectively. 

Rules are important and must be respected.  But they are never cast in stone.  If there is a problem with the rules, States Parties must be willing to sit down with colleagues to work constructively to address those concerns.  We must look for procedural solutions, including the use of modern technology, and to find pragmatic ways to address the reality of having a sitting Head of State before the ICC.  We urge that all States Parties go to the ASP meeting in November ready to engage in this work, and willing to find solutions.

The Court, and its rules, must not make it difficult for States Parties to cooperate. The Court’s framework should be able to accommodate a more flexible and pragmatic approach to participation in proceedings; an approach which recognises exceptional circumstances. In such situations, we need to empower the Court to facilitate cooperation. All involved in the work of Court, including the Office of the Prosecutor and States Parties, must act in ways that support and incentivise cooperation, and that take proper account of the long term interests of the Court and the wider international community. 

Mr President –

As a result of concerns, including over the current cases before the ICC, Kenya and the AU Member States have called on the UN Security Council to defer the Kenya cases.  Under Article 16 of the Rome Statute, the right to request a deferral unquestionably exists and this should be recognised.

There is a legitimate expectation that, when issues related to the ICC are raised, the UN Security Council will act responsibly and respectfully.  The request by the AU and Kenya must be considered by the UN Security Council with an open mind and with a true willingness to hear and give proper consideration to all sides of the argument.

New Zealand therefore believes that the power of deferral, like the power of referral, should be used with great care and restraint; but it also believes that we should not be afraid to use that power in appropriate circumstances.  Deferral should contribute to international peace and security, and it must be temporary in nature. In this regard New Zealand notes that a deferral might allow further time for the Court and the ASP to work on resolving the concerns raised by Africa.

It is essential for the continued viability of the ICC for there to be an honest and respectful recognition of the challenges, and an openness to dialogue as to how best they might be met.

It is because of our consistent and strong support for the Court that New Zealand believes it is necessary to challenge the ICC and the ASP to work on addressing the concerns which have been raised.  

In short, Mr President, New Zealand is committed to playing its part in these challenging times, and to resolving these issues in a manner that will allow the ICC to thrive, as a significant and permanent part of the international architecture. 

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Page last updated: Wednesday, 11 December 2013 10:03 NZDT