Catholic Culture Liturgical Living
Catholic Culture Liturgical Living

Holy See's Statements on Criminal Court

by Fr. Robert John Araujo, S.J., Fr. John J. Coughlin, O.F.M.


Here are the texts of two statements by the Holy See's delegation to the 1998 Diplomatic Conference of Plenipotentiaries for the Establishment of an International Criminal Court. In the first, Fr. Robert John Araujo expressed the Holy See's concern over the ambiguous language used by the Convention, particularly the phrase "enforced pregnancy." This phrase is understood by its proponents as "denial to terminating pregnancy," and, as it conflicts with the anti-abortion laws of many countries, it has no place in international law. In the second statement, Fr. John Coughlin discussed the need for an ICC to stop international drug trafficking, and the importance of appointing an ethical and unbiased head prosecutor.

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L'Osservatore Romano


2 & 4

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Vatican, July 22, 1998

On Tuesday, 7 July, Fr Robert John Araujo, S.J. explained the Holy See's position on crimes of sexual violence to the working group on war crimes.

Thank you, Mr Chairman. My delegation wishes to thank you for all your work in these sessions and your most capable leadership along with the distinguished members of the Australian delegation who have made great efforts to facilitate our discussion on these vital matters. My delegation also expresses its gratitude to the delegations who have shared our interests in these important issues even though our precise views may not always coincide.

My delegation is committed to the protection of the natural and inalienable rights of all human beings. The Holy See has a long history of advancing and protecting these rights that are constitutive of human existence. Over a generation ago the Church stated:

"In our times a special obligation binds us to make ourselves the neighbour of every person without exception and of actively helping others when each comes across our path.... [Whatever is opposed to life itself, such as any type of murder, genocide, ... whatever violates the integrity of the human person, such as mutilation, torments inflicted on body or mind, attempts to coerce the will itself; whatever insults human dignity, such as subhuman living conditions, arbitrary imprisonment, deportation, slavery, prostitution, the selling of women and children; ... all these things and others of their like are infamies indeed. They poison human society.... Moreover, they are supreme dishonour to the Creator".

To this day, the Holy See, like so many others, continues to labour for the advancement of protecting the innocent victims of serious international crimes through sound, just, effective and prudent juridical mechanisms.

Consequently, the Holy See condemns the heinous sexual assaults that greatly harm women and children and violate fundamental legal norms accepted by virtually all humanity. The juridical mechanisms just spoken of should bring those responsible for perpetrating these atrocities to justice. An incentive for making this claim is that those who represent the Holy See around the world by assisting, comforting, healing and consoling the victims of these atrocities often become victims themselves. Yes, Mr Chairman, the Holy See is well familiar with the most serious crimes of concern to the international community through these oft-repeated experiences.

Having said this, my delegation is concerned by a concept that has emerged in the draft Statute, and that is the element of "[en]forced pregnancy". The Holy See shares the concern held by others about the meaning of this vague terminology. Any prosecution of a crime must be based on the fundamental legal principle that there be an intelligible understanding of the crime that is to be prosecuted. Moreover, we are all mindful of the fact that there can be no crime without law. My delegation joins those many other delegations which have endorsed the fundamental legal principle: nullum crimen sine lege. In a recent intervention at this conference, a distinguished delegate from Bosnia-Hercegovina reminded us of this norm in a discussion of the term "ethnic cleansing". As she stated, this term was coined by the perpetrators to give their crime "a more neutral image": however, as the distinguished delegate properly noted, the more precise legal terminology for the crime is covered by the well-known and accepted formulations of genocide and deportation.

Now, why does my delegation echo the concern of others regarding "[en]forced pregnancy"? After an exhaustive search for its meaning, we find no explanation or definition of this expression in any juridical or legal text. We are, however, aware that this term does enjoy an understanding amongst some to mean denial to terminating pregnancy. To be candid, this imprecise phrase has no home within the fundamental rules of international law.

Consequently, my delegation joins others in stating that the problematic language of "enforced pregnancy" must be deleted from the draft Statute for the ICC wherever it appears. Moreover, it should not be replaced by the equally problematic phrase: "forced pregnancy". Neither provides legal redress for the crimes in which perpetrators brutalize their fellow human beings. As with Pandora's box, this language may be appealing to some: however, like Pandora's box, it contains horrors we cannot afford to release. Retention of "forced" or "enforced pregnancy" raises the ironic prospect of making the enforcement of legitimate State and conventional law a "war crime". Included in these difficulties are improper challenges to State constitutions and legislation, multilateral treaties and the obligations they impose, and the rule of speciality which comes into play when two States may be involved in the prosecution of persons charged with crimes that may fall within the jurisdiction of the ICC.

Those opposed to the view of my delegation may state that reservations or interpretive declarations made by parties to the Statute can resolve these matters. My delegation respectfully disagrees. First of all, there remains the question about whether reservations can be made to the Statute. This very important issue has not yet been resolved. Second, reservations and declarations do little to bring uniformity to principles of international law that are presumably universally recognized.

The fact that my delegation, like others, is aware of the fundamental flaws with the interesting concept of "[en]forced pregnancy" does not mean that we are uninterested in the plight of the women and children of Bosnia-Hercegovina who have been the victims of violence. To the contrary, to restate what was said earlier, those responsible for the repugnant brutalities committed against children, women and men — all God's creation — must and can be made to account for their violations of the fundamental principles of international law.

The international community can now address juridically the violence which gravely harms innocent victims, but it must do so within clearly understood and accepted principles of international criminal law rather than with dangerously ambiguous constructions. Eliminating the phrase "[en]forced pregnancy" does not shield from justice the perpetrators of violent crimes identified with the horrors of Bosnia or elsewhere. Such actions can and must be prosecuted within the framework of existing legal norms addressing — for example — rape, enforced prostitution, indecent assault, illegal detention, persecution, slavery, torture, willfully causing great suffering, genocide [a crime that includes: (1) causing serious bodily or mental harm to members of the group; (2) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (3) imposing measures intended to prevent births within the group; and, (4) forcibly transferring children of the group to another group], extermination, committing outrages upon personal dignity [in particular, humiliating and degrading treatment] and medical experimentation. I hasten to add, Mr Chairman, that these are norms defining crimes to which this and other working groups have agreed.

Those sceptical of my delegation's position need only turn to juridical decisions and international conventions to be reminded that the victims of international crimes of Bosnia-Hercegovina — particularly the children and women — have sound legal redress. Examples of such judicial decisions include the ICJ decisions and orders in Bosnia and Hercegovina v. Yugoslavia [sexual crimes are a manifestation of genocide] and the United States Second Circuit decision in Kadic v. Karadzic in which the court stated that [and I quote] "a campaign of murder, rape, forced impregnation, and other forms of torture designed to destroy the religious and ethnic groups of Bosnian Muslims and Bosnian Croats ... clearly state a violation of the international law proscribing genocide".

In this fashion, those responsible for the horrors that are subject to the Court's jurisdiction will be brought to justice within the framework of clear, established principles of international law — and this is the task which we are called to effect in the final days of this conference. To this enterprise, the Holy See extends its sincerest co-operation and welcomes the participation of all people of good will.

The difficulty for all of us is that these horrible crimes that target children, women, families and communities have been committed in Bosnia, Rwanda and perhaps elsewhere. The good news is that the international community presently has at its disposal the ability to bring to justice those who have committed them and to deter those who might commit them in the future.

I am grateful for your indulgence and that of this house. Thank you, Mr Chairman.

On Monday, 13 July, Fr John J. Coughlin, O.F.M. gave the following address on drug trafficking, the arms trade, the role of the prosecutor and the rights of the defence in the draft Statute for the International Criminal Court.

Thank you, Mr Chairman. To start, we express our gratitude for your excellent work in developing the Bureau Proposal, which contains the summary of our work to this point in drafting the Statute for the International Criminal Court. We also thank the distinguished delegate of The Netherlands for the thorough and clear introduction given to the Bureau Proposal as we commence the final week of this important conference. We wish to address first the issue of the Article 5 treaty crimes, specifically drug trafficking and arms trafficking, and then Article 12 regarding the role of the prosecutor and the rights of the defence.

1. The Problems of International Drug Trafficking and Illegal Arms Trade

Although the conference has not been able to resolve the issue of treaty crimes, the delegation of the Holy See thinks that certain treaty crimes should be included within the complementary competence of the ICC as soon as practically possible.

First, we wish to draw attention to the urgent need for an international juridical body, such as the ICC, to exercise jurisdiction over the ever increasing international illegal drug trade, which is often carried out by organized criminal groups in violation of already approved treaties. This organized criminal activity transcends national borders, and consequently, national governments find themselves partially or even completely ineffective in stemming the tide of readily available narcotics. To be sure, the pernicious effects of international drug trafficking are legion. We are concerned in particular about the lives of the millions of user-victims of narcotics, many of whom are children, and also about the dangers posed to the family which forms the basic unit and very foundation of culture and society.

In a similar way, the delegation of the Holy See is also deeply concerned about the illegal arms trade, which is carried out by organized criminal groups. International arms trafficking increases the chances of international and intra-national armed aggression and conflict. As with the drug trade, the consequences of this international criminal activity are damage to, and loss of, human lives, as well as the deterioration and destruction of national structures and the cultures which sustain them.

The Holy See thus strongly endorses the Bureau Proposal that these treaty crimes of drug trafficking and arms trafficking be placed under the complementary jurisdiction of the ICC by a subsequent Protocol or Special Review Conference with due speed. We believe the limited and complementary competence of the ICC promises to serve as an invaluable juridic device for individual nations and the international community in curbing both the spread of drugs and the proliferation of illegal arms.

II. A Strong Prosecutor in Conjunction with Respect for the Rights of the Defence

The delegation of the Holy See endorses the notion of a strong and independent prosecutor. We believe that the Statute as a whole provides for adequate safeguards and checks against possible abuses of prosecutorial power. We are also confident that only individuals whose professional lives reflect a commitment to the highest moral principles and ethical conduct shall be chosen to serve in the important role of the Prosecutor at the ICC. Moreover, it is of course critical that this appointment will rise above any narrow political and ideological concerns.

At the same time, we remain concerned about the legal rights of an accused person to an adequate defence. We think that the process for bringing an accused person to justice must include the right to competent legal counsel. We are especially mindful of those persons who lack sufficient financial means to pay for such counsel, as stipulated in Article 67. In addition, as the Rules of Procedure and Evidence are drafted, we urge that more detailed and specific language than that which is now present in the ICC Statute be developed to protect such fundamental rights as, inter alia, specific notice of the charges, complete availability of all the evidence, adequate time and resources to prepare the defence, cross-examination of the witnesses, admissibility of evidence, and protection of customary privileges such as those between doctor-patient, lawyer-client and priest-penitent.

Mr Chairman, on no less than two separate occasions since the commencement of this conference four weeks ago, His Holiness Pope John Paul II has expressed his encouragement, hope and prayer for the work and success of the conference. The delegation of the Holy See is committed to bring this hope to fruition. We have a number of additional comments to make regarding other aspects of the Bureau Proposal, and we respectfully reserve the right to intervene again at an opportune moment. Thank you.

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