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The Hague,14 August 1997
Judge Kirk McDonald urges that the International Permanent Court "must be effective"
On Monday 11 August 1997, Judge Gabrielle Kirk McDonald addressed an informal plenary of the Preparatory Committee on the Establishment of an International Criminal Court currently convened in New York, inviting its members to "focus on building the strength, flexibility and effectiveness of the Court, as well as its ability to contribute to the ongoing development of international law".
Invited by the Committee to reflect upon her experience at the International Criminal Tribunal for the former Yugoslavia, which has included participating in the drafting and amending of its Rules of Procedure and Evidence and presiding over the first complete trial (TADIC case), Judge Kirk McDonald expressed the hope that "an enduring institution to address the most grievous international and humanitarian law violations" will soon be established: "the importance of an international criminal court is that it defines as criminal conduct that violates certain basic norms established by the international community (...) While ad hoc tribunals contribute significantly to this process, a permanent criminal court should prove more effective not only because of its permanence but because it is not limited by territorial jurisdiction".
"The Court must be effective"
Commenting upon the draft Statute under consideration by the Preparatory Committee on the Establishment of an International Criminal Court, Judge Kirk McDonald told its members that "the Statute should be one of principle and not of detail (...): a Statute which does not give the Court flexibility to address unforeseen issues or make changes to improve the administration of justice will in my view lead to an ineffective court".
She encouraged the Committee to "ensure that the Statute be a flexible document based on principles which may be developed by the Court as the circumstances require while still providing sufficient guidance to establish an international framework within which the Court can work".
The Court' Statute must bear "a component of compulsion"
Another requirement of the Court's effectiveness is in Judge Kirk McDonald's view that "the Statute explicitly grant the Court sufficient authority to redress gross violations of human rights and international criminal law [and that] this authority spring from a commitment by the States to this process".
To be credible, an international justice system "must have a component of compulsion. (...). State sovereignty must be balanced with the need to maintain international peace and security, however, such concerns must give way under appropriate circumstances and with sufficient guarantees if the value of peace is to be respected.(...) Unless the Statute clearly places a legal obligation on States to give effect to these powers [of the Court], the effectiveness of the Court is in question".
In short, as Judge Kirk McDonald put it: "the Court should not be a mere paper tiger, appearing fierce and powerful from the outside but able to be blown over by the slightest wind of opposition".
The Court's Statute must "comport with the highest standards of fairness"
According to Judge Kirk McDonald, "an international criminal court, in order to be truly effective, must adequately protect the rights of suspects and persons accused (...) throughout the proceedings from the time of arrest through the conclusion of trial. This is an essential component of the fairness and thus, effectiveness of an international criminal court".
The Court will "advance the development of International Law"
Judge McDonald also noted that the International Criminal Court had the opportunity to development of international law. In order to facilitate that development, she urged that the Court's Statute allows for separate and dissenting opinion at both the trial and appelate stages. In this regard she noted that "[a]ll the judges at the Tribunal are on record as supporting the position that the Statute should provide for the issuance of separate and dissenting opinion [...] This practice is consistent with the rules of the International Court of Justice which also allows for separate opinions, which have significant pedagogical value, as well as more generally contributing to the maturation of international law."
International Criminal Tribunal for the former Yugoslavia
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