(foto: website-ul ICC)

România este membră a Curții Penale Internaționale de pe 11 aprilie 2002 și a semnat Tratatul de la Roma, documentul fondator al Curții, pe 7 iulie 1999. Curtea a început să funcționeze de pe 1 iulie 2002, după ce 66 de state au ratificat statutul acesteia. Deși în discursul public din România se știu puține lucruri despre Curte, țara noastră este una dintre cele 66 de țări care au ratificat de la început Tratatul de la Roma, deci unul dintre membrii fondatori ai Curții. Un raport al Comisiei de Buget și Finanțe plasează contribuția României în perioada Aprilie 2002 - Aprilie 2015 la 2.245.982 de euro. Cu mult în urma celor mai mari donatori, Japonia și Germania, ambele cu peste 142 de milioane de euro. Totuși, România pare să fi contribuit regulat la bugetul Curții.

Așadar, prezența țării noastre în afacerile internaționale, deși mai degrabă discretă, este indiscutabilă și capacitatea României de a influența politicile de securitate internaționale ar trebui să primească mai multă atenție.

Recomandarea 1: România ar trebui să crească, prin discuții publice, nivelul de conștientizare cu privire la implicarea sa în dezbaterile internaționale pe tema justiției și la contextul istoric, legal și politic al calității sale de membru al Curții Penale Internaționale.

Recomandarea 2: În contextul discuțiilor despre migrația internațională, România ar trebui să sprijine eforturile organizațiilor neguvernamentale, precum Coaliția pentru o Curte Penală Internațională, de a face mai cunoscută publicului larg nevoia apelului la justiție pentru soluționarea sustenabilă a conflictelor.

Recomandarea 3: Ministerul Afacerilor Externe ar trebui să sprijine eforturile Curții Penale Internaționale de a trage la răspundere inculpații și de a investiga noi situații.

Puteți citi mai jos textul integral în limba engleză.

TOWARDS A MORE ASSERTIVE INTERNATIONAL DIPLOMACY:

The International Criminal Court and Romania’s Foreign Policy

Dana S. Trif

April 2016

Romania is a Member of the International Criminal Court (ICC) since 11 April 2002, and signed the Rome Treaty, the Court’s Founding Act, on 7 July 1999. The ICC entered into function on 1 July 2002 after 66 states ratified its Statute. Although little is known about the Court in Romanian public discourse, our country is one of the 66 initial ratifiers of the Rome Treaty and, therefore, one of the ICC’s founding members. The Report of the Committee on Budget and Finance lists Romania’s total contributions between April 2002 and April 2015 to 2.245.982 Euro[i]. This is well behind the Court’s largest financial donors Japan and Germany, both with over 142 million Euro. However, Romania has few outstanding payments and appears to have made regular contributions to the ICC budget.

Our country’s presence in international affairs is therefore, although rather discreet, an indisputable fact and more attention should be paid to its ability to shape international security policy. The International Criminal Court is the first independent and potentially universal tribunal in human history which has been tasked with the implementation of the norm of individual criminal responsibility (Art. 25 ICC Statute). Warlords and rogue leaders, even sitting heads of states are to be tried by its judges irrespective of their superior position in the chain of command, or precisely because of it.

The ability to charge commanders for acts committed by their subordinates represents a major shift in international norms with direct impact on the United Nations’ international security policy. The relationship between the implementation of criminal justice principles and the sustainable resolution of conflicts has become, policy-wise, closer. For example, support for international criminal justice has been steadily rising since the 1990s, when the first international criminal tribunals were created to sift through the bloody aftermath of the Rwandan genocide and of the Yugoslav war. This is not something completely new: the Nuremberg and Tokyo Tribunals are often quoted in recently written histories of international criminal law as predecessors to the ICC. The Court did achieve however several legal breakthroughs in the codification of its Statute. The special category of international crimes now covers comprehensive lists of offenses falling under three major categories: crimes against humanity, war crimes, and genocide. In May 2010, the Kampala Review Conference of the Rome Statute of the International Criminal Court achieved a major political and legal leap forward. One of its most surprising outcomes was the codification of the crime of aggression, which granted the ICC the possibility of exercising jurisdiction in the most controversial of all situations: wars fought by states against each other. By codifying “aggression” as an international crime, policymakers and state representatives have allowed the Court, at least hypothetically, to decide who is the “aggressor” in a particular conflict. If the possibility of a world war might seem remote, lesser scale conflicts between states have in fact occurred rather regularly after 1989: the Georgian-Russian war in August 2008 or the 2014 Israeli incursion in Gaza.

Little information has trickled down however to the broader Romanian public, and the discussion has been mostly held among legal specialists and diplomats.

The significance of prosecuting crimes against humanity to Romanian public discourse on justice and memory can hardly be ignored. The Institute for the Investigation of the Crimes of Communism and the Memory of Romanian Exile, a state-funded institution directly subordinated to the Prime Minister’s Office, has initiated in 2013 two criminal files on grounds of crimes against humanity regarding two former prison commanders during the Communist regime. In the first case the High Court of Cassation and Justice, Romania’s highest legal forum with the exception of the Constitutional Court, already issued its final verdict. Alexandru Vișinescu, former Commander of the Râmnicu Sărat detention facility, a man now in his 90s, was sentenced to twenty years of prison and the payment of financial damages to the survivors of three victims. The legal basis for this controversial sentence, which had one dissenting opion and two in favour, was Romania’s 1968 criminal code. Specialists in Romanian criminal law are still to comment on this path-breaking decision. However, the case will most likely be a trailblazer in Romanian legal jurisprudence, bringing home the debate on the benefits of implementing criminal justice norms.

A different argument in favour of more publicity for such norms and Romania’s international involvement is a new project advocated by diplomatic experts such as former Romanian Foreign Minister Bogdan Aurescu. Mr. Aurescu launched his proposal for the creation of an International Criminal Court against Terrorism in February 2015 during a meeting of the European Union’s Foreign Affairs Council[ii]. The same idea was presented jointly with Spain before the United Nations General Assembly in September of the same year. José Manuel Garcia Margallo, Spanish Minister for Foreign Affairs and Cooperation, endorsed in his intervention the adoption of stronger, joint measures against the Islamic State (IS) and referred to terrorism as a “crime against humanity”[iii].

Romania and Spain have cooperated on this issue, which they perceive as a means of furthering the rule of law in international relations by creating a new accountability mechanism. The question whether a new Court could indeed be the answer to the crimes perpetrated by IS remains open. The Faculty of Law of the University of Bucharest recently hosted, on 1 April 2016, the Conference „The Road towards an International Court against Terrorism”, organized by the Romanian Ministry of Foreign Affairs. The invited expert, Kirsten Meersschaert, Head of Office and Europe Regional Coordinator (The Hague) of the Coalition for the International Criminal Court, an umbrella organization for 2500 NGOs from 150 different countries, has also lobbied the creation of a distinct International Court against Terrorism. In her opinion, reported by the Romanian media, the ICC jurisdiction does not cover the crime of terrorism and adding it to its roster of international crimes would make the Court’s work even more cumbersome.[iv]

The creation of a new international criminal court has several implications. These are not only legal, but also political and financial. The ICC Statute for example is the result of a multilateral Treaty, negotiated and adopted on 17 July 1998 at the United Nations Rome Conference. The ICCs entering into function was conditioned by the ratification of this Rome Treaty by a minimum number of 66 states. Romania was also involved in this process. It is also one of the countries that assisted the Court’s rather difficult beginnings through early ratification. At that time, the United States under the first Bush Administration had launched one of the most virulent campaigns against the Court, and actively sought to hinder its activity. The process of negotiating and funding a new ICC specific for the crime of terrorism would request significant political, administrative and financial resources. By comparison, the International Criminal Court’s approved budget for 2015 is at 124.528.000 Euro[v].

What is needed therefore, rather than setting up a new Court, is more involvement and support for the activities of the one already in place. We also need more public attention to a series of issues which are connected to these legal developments, and which are steadily increasing in relevance for international as well as domestic affairs. For example, the accrimonious debate in Europe on the issue of refugees cannot be disentangled from its broader context of global security, human rights, and the punishment of atrocities against civilians. Many of these refugees come from Syria, a country which in 2014 was the subject of a failed U.N. Draft Resolution requesting the referral of this situation to the International Criminal Court[vi]. Romania was a co-sponsor of this Resolution together with two Security Council Permanent Members, the United Kingdom and the United States, as well as 65 other European, Asian or American countries among which Turkey, Saudi Arabia and Japan. The Draft resolution was vetoed by China and Russia.

One question which naturally arises in such situations is whether the involvement of the International Criminal Court can help the sustainable resolution of a portracted and bloody 6-year old conflict. The discussion is unfortunately highly theoretical. The trial of former Ivorian President Laurent Gbagbo, opened on 28 January 2016 before the International Criminal Court in The Hague, could offer some empirical basis for this debate. Gbagbo’s case is controversial and raises several question marks over the application of criminal justice principles as well as diplomatic practice. While it might not be the first time a head of state faces an international criminal tribunal, it is nevertheless the first time a President was forced to step down and arrested jointly by local opposition forces, U.N. peacekeepers, and a contingent of French military stationed in Côte d’Ivoire (Operation Licorne). In Laurent Gbagbo’s trial we have possibly the parallel to a counterfactual situation: the arrest and transfer to The Hague of Bashar al-Assad.

Even after Gbagbo’s imprisonment, the conflict still simmers in Côte d’Ivoire, the world’s largest cacao producer. The history of its civil war can be traced back to the Presidencies of Houphouët-Boigny (1960 – 1993), the first Ivorian President after decolonization, and his immediate successor, Henri Konan Bédié (1993 – 1999). Bédié was removed from power in 1999 through a short-lived military coup. Laurent Gbagbo, the leader of the Front Populaire Ivoirien (FPI) eventually became President following the elections of October 2000. Unfortunately, the political cleavages which had become apparent towards the end of Bédié’s mandate were reinforced during the Gbagbo Presidency. A failed coup on 19 September 2002 sparked a new civil war and literally split Côte d’Ivoire into two regions: one controlled by the Government in Abidjan and the second, in the North, by the rebel Forces Nouvelles^[vii].

At the heart of the problem are not only economic interests such as rural land tenure rights, but also identity issues like the controversial concept of “ivoirité”. The distinctions drawn between Ivorian-born and “foreigners”, mostly of Burkina Faso and Malian descent, became heavily politicized and the object of controversial constitutional, electoral, and citizenship reforms^[viii]. Alassane Outtara, former Ivorian Prime Minister and leader of the opposition party the Rassemblement des Republicaines, was twice disqualified and barred from participating in Ivorian elections due to his alleged Burkinabé, i.e. Burkina Faso, origin.

The events leading to Gbagbo’s imprisonment at The Hague took place however after November 2010, when the first nationwide elections in ten years were finally organized. The whole electoral process was considered fair, with a high voter turnout of 81%. On 2 December 2010, the Chair of the Ivorian Independent Election Commission announced the provisional results and declared Alassane Ouattara winner with 54.1% of the vote^[ix]. This result was quickly quashed however by the Ivorian Constitutional Council, which cancelled election results in seven Northern departments on allegations of “irregularities, including the use of violence”^[x] and endorsed Gbagbo’s claim to victory. In the following five months, despite international pressure and even a United Nations Security Council Resolution, Laurent Gbagbo refused to step down^[xi]. FPI hardliners continued to reject Ouattara’s election and the security situation in Abidjan deteriorated rapidly. Both the International Crisis Group and the Fédération Internationale des Droits de l’Homme claim that during the ensuing period of political instability 3000 civilians lost their lives^[xii].

Laurent Gbagbo, his family and staff were eventually arrested on 11 April 2011 in a bunker inside the presidential residence^[xiii]. The United Nations Operation in Côte d’Ivoire (UNOCI) and the French Licorne military unit, a contingent of approximately 4000 soldiers, were also involved in these events. Officially, both UNOCI and Licorne had a mandate “to take all necessary measures” in order to “prevent the use of heavy weapons against the civilian population^[xiv]. Gbagbo was transferred to The Hague in November 2011, a move denounced by his supporters as “victors’ justice”^[xv].

Has Gbagbo’s arrest offered so far any remedy to Côte d’Ivoire’s victims? This is a question that Romanian international lawyers and security experts could and should discuss more extensively by drawing on their legal knowledge and experience with armed conflicts.

Sometimes, the facts on the ground might appear at first to delegitimize such efforts. The transition to a new government and country reunification continues to be controversial in Côte d’Ivoire. In June 2012, the Ivorian Interior Minister accused ex-FPI leaders in self-imposed exile in Ghana of having tried to organize a military coup against the current Government[xvi]. The security situation is volatile. Evidence of atrocities committed against civilians after 2011 has also surfaced[xvii]. Former Forces Nouvelles rebels are suspected of having killed pro-Gbagbo supporters, while enjoying impunity[xviii]. The electorate remains polarized on the issue of “ivoirité”, who can or should be citizen of Côte d’Ivoire, and whether or not the Government’s efforts to set up a Truth and Reconciliation Commission in 2011 were truly meant to bring to light, impartially, crimes committed by all sides[xix]. The ICC has two high profile indictees in custody, but little has been undertaken by Côte d’Ivoire in order to bring to justice other perpetrators[xx].

The road towards peace appears to be in this West African state still painful and politically complicated. Laurent Gbabgo benefits from the presumption of innocence and, back home, his associates continue to enjoy political support and to control the FPI, one of in Côte d’Ivoire’s main political parties. In their preliminary declaration before the Court, Gbago’s ICC Defense team claimed that the Prosecutor’s case was faulty and politically biased[xxi].

There are however positive aspects in the ICCs involvement which should also be known. A number of 726 victims participate in this trial[xxii]. The Rome Statute is the first international legal instrument which brings victims literally into the courtroom, allowing them a voice through a legal representative as well as a certain amount of financial compensation. Stability, though fragile, has returned to Côte d’Ivoire. Equally important perhaps is the fact that war did not spill over in neighbouring countries. This is an internal conflict contained through the removal and imprisonment of one of its key players. Could a similar scenario happen too in the Syrian case, or is that war beyond the stage of possible containment? This is not a question with a simple, straightforward answer. Romania could help however the International Criminal Court carry out its arrest warrants, and raise awareness of the importance of implementing criminal justice principles at home and abroad. International history is a process always in the making. We can no longer afford to ignore the finer mechanisms through which our daily lives are affected by

[i]International Criminal Court Assembly of States Parties. Report of the Committee on Budget and Finance on the work of its twenty-fourth session, ICC-ASP/14/5, ICC ASP 14^th Session, 18 June 2015, Annex I “Status of Contributions as at 20 April 2015”, p. 20.

[ii]Ministerul Afacerilor Externe (MAE), România, Comunicat de Presă „Participarea ministrului Bogdan Aurescu la reuniunea Consiliului Afacerilor Externe”, 9 februarie 2015. Pagina web: http://www.mae.ro/print/30571. Accesat: 17 aprilie 2016.

[iii]Spain. Statement Summary. General Debate of the 70^th Session, United Nations General Assembly, 30 September 2015. Retrieved at: http://gadebate.un.org/70/spain. Accessed: 13 April 2016.

[iv]Hotnews. “Bogdan Aurescu: Crearea unei Curți Internaționale împotriva Terorismului ar descuraja statele care ar putea fi considerate refugii sigure pentru teroriști”, 1 aprilie 2016. Retrieved at: http://www.hotnews.ro/stiri-esential-20909168-bogdan-aurescu-crearea-unei-curti-internationale-impotriva-terorismului-descuraja-statele-care-putea-considerate-refugii-sigure-pentru-teroristi.htm. Accessed: 13 April 2016.

[v]ICC Finance Committee, §9(b).

[vi]United Nations Security Council Draft Resolution, 22 May 2014, S/2014/348.

[vii]International Crisis Group. 2003. The War Is Not Yet Over. ICG Africa Report Nr. 72, 28 November 2003, p. 5 – 8 (Part II. The Failure of the Ivorian Model), p. 3-4.

[viii]Ibid., p. 2-3.

[ix]United Nations Secretary-General, Twenty-Seventh Progress Report of the Secretary-General on the United Nations Operation in Côte d’Ivoire, 30 March 2011, S/2011/211, §14.

[x]Ibid., §15. See also: International Crisis Group. 2011. Côte d’Ivoire: Is War the Only Option? ICG Africa Report Nr. 171, 3 March 2011, p. 3-10.

[xi]United Nations Security Council Resolution 1975, 30 March 2011, S/RES/1975(2011), §1.

[xii]International Crisis Group. 2012. Côte d’Ivoire: Diffusing Tensions, Africa Report Nr. 193, 26 November 2012, p.i, and Fédération Internationale des Droits de l’Homme (FIDH). 2013. Ivory Coast: “The Fight against Impunity at a Crossroad”, November 2013, p. 4.

[xiii]United Nations Secretary-General, Twenty-Eighth Progress Report of the Secretary-General on the United Nations Operation in Côte d’Ivoire, 24 June 2011, S/2011/387, §2-10.

[xiv]Ibid., §5. See also §8.

[xv]RFI Afrique. 2012. Côte d’Ivoire: le FPI dénonce une justice sélective, 9 juin 2012. Website: http://www.rfi.fr/afrique/20120609-cote-ivoire-le-fpi-denonce-une-justice-selective. Accessed: 25 Feb. 2016.

[xvi]International Crisis Group. 2012. Côte d’Ivoire: Diffusing Tensions. ICG Africa Report Nr. 193, 26 November 2012, p. 6.

[xvii]Fédération Internationale des Droits de l’Homme (FIDH). 2014. Côte d’Ivoire: “Choisir entre la justice et l’impunité. Les autorités ivoiriennes face à leurs engagements“, Décembre 2014, p. 21-22.

[xviii]FIDH, Choisir entre la justice et l’impunité, 2014, p. 19-20.

[xix]FIDH, The Fight Against Impunity at a Crossroad, 2013, p. 20-22. See also: International Crisis Group. 2011. A Critical Period for Ensuring Stability in Côte d’Ivoire. ICG Africa Report Nr. 176, 1 August 2011, p. 10.

[xx]FIDH, Choisir entre la justice et l’impunité, 2014, p. 15-19.

[xxi]International Criminal Court YouTube Channel. Website: https://www.youtube.com/watch?v=Xf3FcKlyPzc. Accessed 2 March 2016.

[xxii]International Criminal Court, Questions and answers regarding the opening of the trial in the case of The Prosecutor v. Laurent Gbagbo and Charles Blé Goudé, Updated 27 Jan. 2016, Document nr.: ICC-PIDS-Q&A-CIV-02-01/16_Eng.