Swiss Ambassador Speech on ICC Diplomatic Briefing by the Indonesian CICC

Opening remarks by Ambassador of Switzerland Bernardino Regazzoni
on the occasion of a Diplomatic Briefing by the Indonesian Coalition of NGOs promoting the Accession of Indonesia to the Rome Statute.
(Jakarta, July 28th, 2008)

Ibu Tuti Harkrisnowo, Director General at the Ministry of Law and Human Rights,
Chairman and Executive Director of IKOHI and ELSAM,
Friends and colleagues from the Diplomatic Corps,
Ladies and Gentlemen,

I have the pleasure to open this diplomatic briefing today, to which we were invited by the coalition of Indonesian NGOs advocating the accession of the Republic of Indonesia to the Rome Statute. An occasion that the Swiss Embassy in Jakarta is happy to support. I am sure the briefing will provide us with valuable information about the efforts and progress on the way to Indonesia’s ratification. I hope that this briefing will allow as well for a lively discussion to take place after the presentations of distinguished Professor Harkrisnowo and of our friends from IKOHI and ELSAM.

The recent tenth anniversary of the Rome Statute on 17th July makes today’s event seem even more appropriate.

Let me shortly address some issues of substance:

The establishment of the International Criminal Court is an historical achievement or, in the words of then UN Secretary General Kofi Annan “A present of hope for future generations”. The Rome Statute is certainly among the most important human rights treaties to date. Some even deem it to be the result of one of the most important multilateral negotiations since the adoption of the UN Charter in 1945. For sure: it is an epochal progress in the enforcement of human rights and the realization of international justice.

Ending impunity for the most serious crimes and thereby contributing to prevent future crimes: this is the main objective of the ICC. The Rome Statute succeeded in achieving a consensus on so-called “core crimes” that under no circumstances must go unpunished. Those crimes are: genocide, crimes against humanity and war crimes. Such a consensus makes the argument of cultural relativism impossible. It is acknowledged that such grave crimes, in the words of the Preamble of the Statute, “threaten the peace, security and well-being of the world” and therefore they “must not go unpunished (…) and their effective prosecution must be ensured”.

It is remarkable that since 1998 107 countries have ratified the Rome Statute. Each of these States have carefully analyzed and weighed the pros and cons of becoming a State Party. Eventually, they decided that the advantages outweighed the disadvantages and challenges. Still the objective of universality remains to be achieved, despite the widely acknowledged need and timeliness of the ICC, as well as the confidence of the international Community in its credibility.

Switzerland considers the development and strengthening of international law as one of the most effective instruments for enhancing its security and preserving its interests. The Swiss Federal Constitution puts the promotion of respect for human rights as one of the fundamental objectives of Swiss foreign policy. Therefore, Switzerland participated alongside 120 other States actively in the negotiations leading to the adoption of the Rome Statute in 1998. Its Parliament ratified the Statute in October 2001. Switzerland was among the Group of 60 States whose ratification brought the Statute into force on the 1st of July 2002.

Since its establishment, the ICC has become continuously more operational. It has not only indicted a number of commanders of non state armed groups from the Democratic Republic of the Congo, Uganda and the Central African Republic – States who all called upon the ICC to become active. Most recently, it also made public the indictment of the President of Sudan, Mr. Omar al-Bashir, regarding the situation in Darfur, which was deferred to the ICC by the UN Security Council.

The discussion triggered by the work of the ICC Prosecutor, Mr. Moreno Ocampo in general, and in particular the decision to indict an acting head of State, shows on the one hand the importance of a well functioning international criminal justice system. On the other hand, it fuels the fears of those who might become targets of the Court in the future. It is my intimate conviction that such debates are necessary. However, I believe that there is no doubt about the direction we take: we are steadily moving towards a world in which genocide, crimes against humanity and war crimes will be effectively sanctioned, be it through an effective ICC or thanks to the principle of complementarity through effective national criminal justice systems.

We all heard about the recent arrest of Radovan Karadzic in Serbia, indicted by the UN International Criminal Tribunal for the Former Yugoslavia. I would like to take this important development in the history of international justice as an example for the need for patience and determination. Few things happen overnight and even fewer things happen automatically. An incremental approach is therefore in my eyes best suited for allowing an effective system of international justice to be put in place.

Let me now address the Rome Statute in relation to Indonesia, our host country. The National Plan of Action on Human Rights by the President of the Republic of Indonesia (RANHAM) sets the objective of the ratification of the Rome Statute by 2008. I am aware that this is a challenging endeavour and I welcome and strongly support this objective, as we all do. It is my firm opinion that the ICC needs Indonesia on board. In fact only few Asian countries have so far ratified the Rome Statute. Indonesia has now an opportunity to set a landmark example for its region. Political commitment as well as firm action is needed. Among other means, advocacy will certainly remain essential and in addition to NGOs, media may also have an important role to play in preparing the public and in fostering understanding within society, supporting thereby the work of the Government and of the Parliament.

The jurisdiction of the International Criminal Court is not retroactive. It does not extend to crimes perpetrated before the date of accession of one State Party to the Rome Statute. This triggers sometimes disappointment, namely by those who expect clarity and accountability for crimes of the past. Let me express my deep respect for the suffering of victims of past abuses of human rights and of international humanitarian law. But let me assert in the meantime my conviction that a universal and well functioning International Criminal Court profits also them, as it yields the promise to reduce the risk of reoccurrence of what happened to them for their children and grand children. “Never again!”: this can be the inspiring banner under which a consensus can be achieved on the necessity to join the ICC. The words of Kofi Annan I quoted at the beginning (“A present of hope for future generations”) can be grasped to their fullest extent only if they are taken up also by the victims of past crimes.

In the field of transitional justice, other instruments are at the disposal of societies and governments in their endeavour to come to terms with their past (recently Switzerland itself was by the way not spared of dealing with its own past). The ICC is not designed to replace such mechanisms and processes. This may be best illustrated by the ongoing debates regarding national and regional truth and reconciliation commissions in Indonesia, as well as by the recent submission of the Report of the Commission on Truth and Friendship to the Presidents of the Republic of Indonesia and of Timor-Leste respectively.

As a matter of fact, I am convinced that the discussion regarding the accession of Indonesia to the Rome Statute and the current deliberations regarding future TRCs will have a mutually reinforcing effect. My country remains therefore committed to support not only the process leading Indonesia to join the International Criminal Court, but also to establish transitional justice mechanisms.

It’s time now for me to conclude my opening remarks and to thank the coalition of Indonesian NGOs promoting Indonesia’s accession to the Rome Statute for taking the initiative of organising this event, which I hope, will prove to be useful to all of us.