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November 4, 2016 – Ottawa, Ontario
Check against delivery. This speech has been translated in accordance with the Government of Canada’s official languages policy and edited for posting and distribution in accordance with its communications policy.
Having the privilege to speak before the Canadian Council on International Law, let me describe what the Government of Canada has achieved to promote an international rules-based order. I believe the record is quite impressive, but it is for you to judge. And since I am speaking right before Fatou Bensouda, Prosecutor of the International Criminal Court [ICC]—to whom I wish a warm welcome and a most productive visit—I should say that Canada is worried about any retreat from a rules-based order. A weakening of the ICC would be a step back. I want to tell Ms. Bensouda and everyone that Canada will do what it can to make sure this retreat does not occur.
Canada, as a determined peacebuilder, has taken important steps to advance a rules-based order and universal human rights:
- The violations of the laws of war in Syria must end, which is why two weeks ago, Canada led the effort at the UN and marshalled more than 70 countries calling for an immediate end to air strikes in the city of Aleppo.
- Canada wants a world free from nuclear weapons, which is why last week Canada sponsored a resolution advancing a fissile material cut-off treaty at the UN General Assembly that won the support of 177 UN member states, including crucially both nuclear and non-nuclear weapon states. Such a treaty would restrict production and access to the materials necessary to create nuclear weapons.
- Canada must oppose the death penalty in all cases, everywhere, which is why Canada now asks for clemency in all cases of Canadians facing execution abroad.
- Human rights are universal, interdependent and interrelated, and the Government of Canada has created a new Office of Human Rights, Freedoms and Inclusion. Moreover, promoting human rights, freedoms and inclusion is now a fundamental objective of all Canadian heads of mission. They will be ranked at the end of the year according to their results!
- Torture should never be an option, which is why I have announced that Canada intends to become a party to the Optional Protocol to the Convention Against Torture.
- Children belong in schools, not factories, which is why we ratified the International Labour Organization’s Convention 138 on child labour.
- The trade of weapons must be better regulated, which is why we will soon be acceding to the Arms Trade Treaty.
- Gender equality must be promoted everywhere. That is why we successfully campaigned to be elected to the Commission on the Status of Women at the United Nations for the first time.
- Carbon pollution respects no borders, and the effects of climate change will spare no one, which is why we ratified the Paris Agreement on climate change.
- Canadians want free trade that respects our progressive values, which is why a few days ago the Prime Minister [Justin Trudeau] put his signature at the bottom of the Canada-EU [Comprehensive and Economic] Trade Agreement.
The overarching goal of the foreign policy of this government is for Canada to be a determined peacebuilder, peace being defined as more than the absence of conflict. Peace means all the values expressed by Prime Minister Justin Trudeau: inclusive growth, sustainable development, democracy and universal rights, gender equality, accountable governance, peaceful pluralism, respect for diversity and the rule of law.
To advance these values, the world needs rules that apply to all, including those who make them, including the most powerful. Such rules are key to peace, stability and prosperity. And it will be especially critical to ensure the defence and legitimacy of these rules in an increasingly multipolar world.
The goal of the Government of Canada is to be a determined architect of peace for a world that respects international law. We want progress: we don’t want any movement backward.
And this is why we worry about what’s happening to the International Criminal Court. We take this to heart partly because Canada, of course, was at the forefront of the movement leading to its creation, but overall because in a relatively short period of time, the court has accomplished a lot, including landmark judgments condemning:
- the recruitment of child soldiers;
- sexual and gender-based crimes; and
- the destruction of cultural property.
We need the court.
This is why we have been deeply saddened to hear the news that South Africa, Burundi and the Gambia plan to withdraw from the court.
Saddened because Africa has been an important partner in the creation of the court from its earliest days. And saddened because African victims deserve justice.
At the same time, we are encouraged by African voices that have spoken out in support of the court, including Botswana, Sierra Leone, Nigeria, Tanzania and Senegal.
The Government of Botswana has said that withdrawing from the Rome Statute “betrays the rights of the victims of atrocious crimes to justice and also undermines the progress made to date in the global efforts to fight impunity.”
This is well said, and a wise opinion we share.
Civil society is speaking out as well in support of the court, including in the African countries whose governments are withdrawing.
Today let me do the same in addressing the arguments that have been advanced for withdrawal.
First, it is said that the fact that permanent members of the [UN] Security Council have not ratified the Rome Statute detracts from the court’s legitimacy.
There is weight to this criticism. The Security Council can and does refer cases to the International Criminal Court, but three permanent members of the Security Council are not members of the court.
Canada would like to see the Rome Statute eventually become universal, in the same way that the Geneva Conventions have become universal in the decades since their adoption.
But we must have universality as a goal toward which we strive—not a barrier against which we stumble.
Second, it is said that the court’s current caseload reflects a bias against Africa.
It is true that, of the 10 situations that are being investigated by the court, nine are from Africa. However, six of these situations were referred to the court by the affected African countries themselves.
Two of the other situations, Darfur and Libya, were referred to the court by the Security Council—with support from African states represented on the council.
Moreover, it is normal that not all problems in the world at a given time are evenly distributed. For example, the fact that such a large percentage of peacekeeping missions are in Africa reflects the needs that are pressing on this continent. The preoccupation with events in the Balkans, which ultimately helped lead to the creation of the International Criminal Court, did not reflect a bias against the Balkans. The international community was answering a real need.
Now, the fact that there are more cases in Africa does not reflect a bias. The court is responding to real needs.
If the International Criminal Court had existed in the sixties and seventies, the focus could well have been Latin and Central America. In the nineties, its focus would have been the serious international crimes committed in Europe—in the former Yugoslavia. Indeed, it was that grim chapter in our recent history that led to the creation of the International Criminal Tribunal for the former Yugoslavia—a forerunner to today’s ICC.
Even assuming the court could cover Africa better than other parts of the world, this would be an asset for Africans, and they should not be deprived of it. We must work harder to enable the court to better protect the inhabitants of other continents against those who trample their most fundamental rights with impunity.
We need more of the International Criminal Court, not less.
So, where do we go from here?
First, we should engage the countries that want to withdraw to discuss their concerns and we hope to convince them to change their minds.
The objective of such discussions should be to strengthen the court, not to weaken it, and to make sure that it continues to be responsive to the needs of the international community and to the victims of serious international crimes.
I believe that it is important to have these discussions, which is part of the reason I am headed to Africa next week.
Second, we must move forward in adding new members, especially in regions of the world where the court continues to be under-represented, such as in Asia and the Middle East.
Third, we should remember some of the core principles that led us to create the court in the first place, and we must remain firm in our defence of them.
Let me tell you what I believe two of those principles are.
The first principle is a normative principle: equality before and under the law. The Rome Statute applies to “all persons without any distinction based on official capacity.” Even heads of states are not immune from prosecution. This was a major—if not the major—victory of the Rome Statute, and we must never surrender it.
The second principle is procedural: the notion of complementarity. The court is meant to be a court of “last resort.” It is to be engaged only when the state which has jurisdiction is unwilling or unable genuinely to carry out an investigation or prosecution.
One way to make complementarity effective is to strengthen domestic legal systems. When national courts better deal with crime fairly and effectively, then there is less chance the International Criminal Court will have to become involved.
We also welcome regional initiatives to hold perpetrators of serious international crimes to account. Canada has had a long history in Africa of supporting some of these initiatives, including in particular the work of the Special Court for Sierra Leone. We have done the same outside of Africa as well, including through support for the Special Tribunal for Lebanon.
And we have also supported other efforts to ensure accountability even in the absence of international criminal tribunals, such as the work of the Commission for International Justice and Accountability gathering evidence in Syria and Iraq, and the Joint Investigative Mechanism examining the use of chemical weapons in Syria.
These initiatives are complementary to the work of the court. They build a growing web through which these crimes will not slip.
Over 120 states are parties to the International Criminal Court. We cannot forget how far we have come—and why. The court is the legacy of so many who demanded that the perpetrators of the world’s worst crimes be held accountable.
The challenges facing the court today are real. But all of us must face them with determination, conviction, a deep sense of responsibility—and even optimism.
Office of the Minister of Foreign Affairs
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