Question:

Mr.Kaul, Germany is one of the most progressive and active countries within the "like minded" group supporting a functional and independent ICC. Germany's Foreign Minister Mr.Klaus Kinkel was the one who in several occasions in German but also in the international press stressed the importance of establishing the ICC (only to mention the latest articles in "Le Monde" and "Baltimore Sun". Which are in your opinion the prospective of a positive conclusion of the Diplomatic Conference and which are the main obstacles to it?

Answer:

Let me say right at the outset: the German delegation believes that we can do it. We still have a reasonable chance to secure a positive conclusion of the Conference. Until now nothing has happened which would seriously endanger the perspective of a successful outcome of the Rome Conference. If we manage to bring about a statute for an effective, workable and independent Court we would have achieved our goal. Such a happy end would make my delegation, who like others has invested enormous work in this project, very happy indeed. Let us not forget: today is the 26 of June, day 10 of the working days of the Conference. Right now the Conference is in full swing. There is work going on in many working groups and informal consultations, literally day and night. Delegates will work on certain parts of the statute even over the weekend. All in all a serious effort is under way to come to a positive and timely conclusion of the Conference. On the other hand, yes, there are serious risks for a positive outcome. You have asked about the main obstacles. Yes there are several obstacles. Clearly some states take a very restrictive approach to the project. There is a lot of old thinking, an over-emphasis of sovereignty and the principle of non-interference. There is also an exaggerated search for safeguards. Some want always more safeguards, in almost every part of the statute. They seem to fear an effective Court. But let us not forget two things: first, we are talking here about the most heinous crimes: genocide, war crimes, crimes against humanity and the crime of aggression. Second: there is universal consensus that these crimes must be punished and if states fulfill their obligation to prosecute the perpetrator of these crimes, they have nothing to fear. The Court will only act when national criminal justice systems fail.

Question:

Germany is the country that since the Prepcom meetings is proposing and strongly supporting the definition and inclusion of crimes of aggression to the "core crimes" in the competence of the Criminal Court. Can you tell us more about that?

Answer:

Yes, the German position is quite clear. There is universal consensus since Nuremberg that to wage a war of aggression against another state is a crime under international law. Therefore, not to include this crime would, in our view, be a regression. The International Law Commission, the highest body of the United Nations, has proposed to include the crime of aggression into the statute. We believe that not to include it would be a refusal to draw an appropriate conclusion from recent history. We need the inclusion of this crime for reasons of deterrence and prevention. To have this crime in the statute would be a strong signal to future tyrants: hey, if you dare to wage an aggressive war against a neighboring state you will end up being tried in the International Criminal Court.

But let me also mention that our proposal continues to be confronted with two problems. First: Its very hard to achieve consensus about an appropriate definition

establishing individual criminal responsibility. And second: its also very hard to achieve consensus about the legitimate role of the Security Council. We all have given in the Charter the primary responsibility for the maintenance of international peace and security. We have predicted - and I repeat this prognosis - that attempts to ignore this responsibility of the Security Council will have the effect that the crime of aggression unfortunately cannot be included in the statute.

Question:

Finally, Mr.Kaul, could you explain the German proposal to have an universal jurisdiction of the Criminal Court over the core crimes?

Answer:

Thank you for this question as it concerns a crucial aspect of the project. The German proposal on universal jurisdiction is quite simple. There is already universal consensus about the principle of universal jurisdiction. This principle means that under current international law, all states may exercise universal jurisdiction concerning acts of genocide, crimes against humanity and war crimes, regardless of the nationality of the offender, the nationality of the victims and the place where the crime was committed. This principle is recognized both in doctrine as through extensive state practice.

Now, what does this mean in concrete terms. Let me give you a theoretical example, an example for illustrative purposes. Let us assume for a moment that a genocide was committed at the North Pole. According to the principle of universal jurisdiction, also the states on the other side of the globe, say, for example Argentina or Chile could bring to justice the perpetrators of this genocide committed at the North Pole, regardless of the nationality of the perpetrator and also if no Argentineans or Chileans were among the victims of this genocide. This is because the International Community has agreed that the crime genocide can and should be punished everywhere in the world.

Again, what does this mean for the work of the Conference. It means the following. The states participating in the Conference and building together the Criminal Court, they can stand in the circle of the Conference and pledge to each an official manner that also the International Criminal Court, the common institution they create, can exercise the same universal jurisdiction over the core crimes as the State parties themselves. This is the meaning of our proposal. We are encouraged by the support expressed by many states and we hope that it will have an impact in the debate on the jurisdiction.