The document discusses the European Parliament's role in promoting democratic governance and human rights within the EU and its external relations, emphasizing the need for effective instruments to ensure member states adhere to human rights standards. It highlights the challenges faced by the International Criminal Court (ICC) and the necessity for maintaining its independence to address crimes against humanity and terrorism effectively. The document also critiques the ability of the European Parliament to translate its resolutions into tangible human rights protections, advocating for greater coherence and coordination in its actions.

1. The role of the European Parliament in democratic governance and
human rights.
Current challenges of the ICC system of international criminal justice
Honourable Members of the International Court of Justice, members of
national Parliaments, members of the European Parliament, Ambassadors,
Mr. Donfried, Director General of the Institute for Cultural Diplomacy,
Thank you so much for this extraordinary opportunity to share with this
distinguished audience some thoughts about international justice and
human rights.
Today, it looks crystal clear that, in our global world, the battlefield of
peace and democracy is played, more than ever, by the rule of law and the
respect to fundamental and human rights, opposite to the everyday-
everywhere occurring crimes against humanity through all kinds of
intolerance, fanaticism and terrorism.
Only four weeks ago, the most deadly face of this scenario showed up in
Paris. Terrorist jihadism, or jihadist terrorism, is now stronger, more
powerful, better globally financed and organised than ever.
It is hatred against respect. It is living together in peace versus the will to
destroy democratic values. As easy and dramatic as that.
Furthermore, transparency, efficiency in public action and fight against any
version of impunity must lead all our efforts as public servants and
representatives. We are not here but to find solutions to the urging
demands of justice and equality of all the citizens we represent and serve.
Let me please start with a brief general overview of the actions of the
European Union in promoting human rights and international law

2. standards in its external relations, including the specific role of the
European Parliament in this regard, in particular its Subcommittee on
Human Rights.
Some of the main tools used by the EU to promote Human Rights in its
external relations are the EU Guidelines on Human Rights, as well as the
Common Strategies, Joint Actions and Common Positions, the
Démarches and Declarations, or the Human Rights Dialogues and
Consultations with third parties.
The EU Guidelines on Human Rights are policy documents adopted by the
Council. They cover issues of particular importance to EU Member States:
Death Penalty (adopted in 1998); Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment (2001); Children and Armed Conflict
(2008); Human Rights Defenders (2004), and International Humanitarian
Law (2009) to name a few.
In addition to that, through the European Instrument for Democracy and
Human Rights (EIDHR), which currently has an average annual budget of
some €140 million, the EU funds a broad range of human rights projects
across the world relating to the EU guidelines on human rights. The EIDHR
provides assistance without the consent of third country governments and
other public authorities. Partners of the EIDHR are primarily international
and local civil society organizations, without excluding international
intergovernmental bodies with special expertise. In 2013 civil society
organisations continued to be the main recipient of support from the
European Instrument for Democracy and Human Rights.
But I would like to especially highlight and remark the essential
importance of the Human Rights Clauses in EU’s external agreements.
Since 1995, the European Community has sought to insert a human rights
clause in all agreements, other than sectorial agreements, concluded with
non-industrialised countries. The human rights clause makes human rights
a subject of common interest and part of the dialogue between the parties
and serves as a basis for the implementation of positive measures on a par

3. with the other key provisions in the Agreement. In the event of serious
and persistent breaches of human rights, the HR clause is an open window
for members of the parliament to demand third countries to respect
human rights, enabling one party to the Agreement to take restrictive
measures against the offending party in proportion to the gravity of the
breaches.
I would like to introduce here a point of concern for your consideration:
countries who want to join the EU have to meet the highest standards of
democratic governance and human rights, as stipulated by the so-called
Copenhagen criteria. But in recent years, the EU was unable and unwilling
to discipline members who do not respect the rules: deportation of Roma
people, anti-gay laws, gagging and intimidating the media, undermining
the independence of the judiciary, clandestine mass surveillance
programmes, complicity in torture programmes, manipulation and abuse
of electoral laws to eliminate opposition parties, impunity for corruption…
In the absence of binding rules, the EU urgently needs effective
instruments to ensure all its members abide by the rules. Like the Stability
and Growth Pact for the Eurozone, the European Union needs a
Democratic Governance Pact, upholding the Rule of law and Fundamental
Rights. My political group at the European Parliament, the Alliance of
Liberals and Democrats, is currently leading this initiative that I strongly
support.
Regarding the role and contribution of the European Parliament and the
Sub-Committee on Human Rights in particular
The European Parliament contributes to the Union’s policies and monitors
the work of other EU institutions. Resolutions adopted by Members of the
European Parliament help to raise awareness of human rights abuses.
Resolutions may be a part of the legislative process, an outcome of own-
initiative reports drawn up by parliamentary committees or the result of
the human rights debates that usually take place on the Thursday session
of each Strasbourg plenary to highlight flagrant violations of human rights
across the world.

4. At the level of the committees of the European Parliament, issues relating
to human rights in the world are specifically dealt with by the Committee
on Foreign Affairs’ Subcommittee on Human Rights (DROI). The
Subcommittee maintains close working relations with the European
External Action Service (EEAS), other EU institutions and human rights
NGOs, as well as multilateral human rights institutions. Through in camera
briefings and debriefings, the Subcommittee on Human Rights has
continued to follow the human rights dialogues and consultations
conducted by the EEAS with third countries. Since 2013, DROI established
a solid working relationship with the new EU Special Representative
(EUSR) for Human Rights, including through the holding of regular public
exchanges of views regarding EU human rights policy.
Apart from the work done within the Subcommittee on Human Rights, the
European Parliament also seeks to achieve the extension of human rights
in its work, in accordance with the Articles in the EU basic treaties, which
define universal human rights and democracy as the founding values of
the Union and as the core principles and objectives of the Union's external
action. The Committee on Civil Liberties, Justice and Home Affairs (LIBE) is
the key actor on fundamental rights within the European Union, and it has
major responsibilities concerning external aspects of the EU’s internal
policies, for example in the areas of migration and asylum policy.
Constitutional and legal questions are dealt with by the Committee on
Constitutional Affairs (AFCO) and the Committee on Legal Affairs (JURI),
which consider, among other areas, EU accession to the European
Convention on Human Rights, which will also have implications and impact
on EU external relations.
The European Parliament, as the only directly elected EU institution, is
strongly committed to developing EU's policies in support of democracy
throughout the world. The European Parliament’s committees as well as
the standing inter-parliamentary delegations conduct official delegation
visits to third countries. The joint parliamentary assemblies bring together
Members of the European Parliament and parliamentarians from third
countries to discuss common challenges, including human rights and

5. democracy issues. These assemblies are currently the ACP-EU Joint
Parliamentary Assembly, the Parliamentary Assembly of the Union for the
Mediterranean, the Euro-Latin American Parliamentary Assembly and the
Euronest Parliamentary Assembly.
And last but not least, the European Parliament’s Sakharov Prize for
Freedom of Thought honours exceptional individuals who combat
intolerance, fanaticism and oppression to defend human rights and
freedom of expression. The 2014 Sakharov Prize was awarded to Dr.
Dennis Mukwege from the Democratic Republic of Congo.
By awarding this prize, the European Parliament acknowledges his over
thirty years of admirable work struggling for women’s dignity, for justice
and peace in his country, giving medical, psychological and legal care to
thousands of women and girls, victims of sexual violence, often forced to
keep silent to avoid being ostracised. Dr Mukwege unceassingly stresses
the need to fight impunity and prosecute the crime of mass rape, as it is
used as a weapon of war and terror against innocent and fragile human
beings. A strong signal to the government of the Democratic Republic of
Congo: the Congolese are thirsty for peace and justice. They can count on
the unrelenting support of the EU and the international community.
What is the real impact of the European Parliament resolutions, reports
and studies related to human rights?
The European Parliament is seen as the most principled and outspoken EU
institution within the field of human rights. However, empirical research
suggests that translating this visibility into tangible results — protecting
individuals and organisations and influencing third countries' policies
violating human rights — remains an elusive goal. Many factors that
determine the impact of the Parliament in the field of human rights are
external to the Parliament and beyond its control. Others, however, stem
from a lack of coordination between the Parliament and the European
External Action Service. Within the Parliament, factors that can influence
the organisation's impact include the level of coherence, consistency and

6. coordination of activities. To strengthen its effectiveness, the European
Parliament should make the following adaptations: strengthen contacts
with civil society in third countries to reinforce the institution's position as
a supporter of human rights; increase its internal coherence and
coordination across different instruments; exploit the powers granted by
the Lisbon Treaty to promote an effective and common EU human rights
strategy and to have an effective and binding instrument, supplementary
to Art. 7 of the TEU avaiable to respond to situations of Member States
not complying with Art. 2 of the TEU.
From my point of view, the best way to serve human rights interest from
the international law perspective is to strictly maintain independence and
efficiency, avoiding any kind of misuse or misleading of its mission and
actions.
International community –in particular governments, legislators at a
national and supra national level, members of the judiciary, the legal
profession and legal scholars, representatives from global governance
institutions, NGOs specialized in human rights– must make every effort to
preserve the impartiality and independence of the ICC and other
international criminal tribunals, and keep them away from any form of
politicisation. They come to existence to administer justice and not to
advance anyone’s political agenda.
International criminal tribunals are a relatively recent development of
international law, beginning with the Nuremberg Trials created seventy
years ago after the Second World War. They typically entail legal
consequences at the level of individual criminal liability rather than state
liability. They mean a great contribution to strengthen the rule of law, and
avoid impunity. The ICC is today the most notable example of an
international criminal tribunal.

7. The Nuremberg Trials refer to the international criminal tribunals created
by the Allied Forces –the US, the Soviet Union, the UK, and France– shortly
after the end of WWII. They prosecuted and punished prominent
members of the political and military leadership of Nazi Germany. Their
judges and prosecutors were appointed by each of the countries
mentioned above. The Nuremberg Charter was a document constituting
the tribunals and setting down the laws and procedures by which
the Nuremberg trials were to be conducted.
The charter stipulated the crimes to be prosecuted. Three categories of
crimes were defined: crimes against peace, war crimes, and crimes against
humanity. Obedience to orders could only be considered in mitigation of
punishment if the tribunal determined that justice required so.
The rulings and legal principles laid down by these tribunals were later
codified into the “Nuremberg Principles” which, in turn, were the basis for
other international criminal tribunals constituted since then, as The
International Criminal Tribunal for the former Yugoslavia (ICTY),
The International Criminal Tribunal for Rwanda (ICTR), The Special
Tribunal for Lebanon (STL).
I would like to point out some specific attributes of the Special Tribunal
for Lebanon. The STL’s eleven judges, a combination of Lebanese and
international judges, are appointed by the UN Secretary General for a
renewable term of three years. It is unique among international criminal
tribunals in that it may hold trials in absentia. Further, it is the first
international criminal tribunal to deal with terrorism as a distinct crime.
In 2011, the STL established the elements of the crime of terrorism and
laid down the groundwork for its definition and codification in future:
“On the basis of treaties, UN resolutions and the legislative and judicial
practice of States, there is convincing evidence that a customary rule of
international law has evolved on terrorism in time of peace, requiring the
following elements: (i) the intent (dolus) of the underlying crime and (ii)
the special intent (dolus specialis) to spread fear or coerce authority; (iii)
the commission of a criminal act, and (iv) that the terrorist act be

8. transnational. The very few States still insisting on an exception to the
definition of terrorism can, at most, be considered persistent objectors”.
The STL was chaired at the time by the reputed Italian jurist Antonio
Cassesse, whose impartiality and knowledge in the matter are
indisputable.
Beyond these mentioned ad hoc tribunals, the International Criminal
Court (ICC) is a permanent tribunal
The ICC has jurisdiction to prosecute individuals for the crimes
of genocide, crimes against humanity, and war crimes. As of 2016 it will
include the crime of aggression. It is intended to complement existing
national judicial systems and it may therefore only exercise its jurisdiction
when certain conditions are met, such as when national criminal courts
are unwilling or unable to prosecute criminals (“complementarity”) or
when the UNSC or individual states refer investigations to the court. The
ICC’s Prosecutor may initiate investigations on their own on the basis of
information of crimes within the jurisdiction of the court. The ICC began
functioning on July 1, 2002, the date on which the Rome Statute entered
into force.
As we all know well, the Rome Statute is a multilateral treaty which
serves as the ICC's foundational and governing document. States which
become party to the Rome Statute by ratifying it, become member states
of the ICC.
The ICC has (i) territorial jurisdiction over crimes committed on the
territory of member states (including vessels and aircrafts registered in
that state) and (ii) personal jurisdiction over persons who are nationals of
member states.
A state which is not a party to the Rome Statute can accept the
jurisdiction of the ICC by lodging an ad hoc declaration with the Registrar.
The requesting state may authorize the court to assume jurisdiction in

9. respect of crimes committed before the date on which the declaration was
filed with the Registrar.
In respect of a new member state, the court will only exercise
jurisdiction after the date of entry into force of the Rome Statute for that
state, however, the requesting state may authorize the court to assume
jurisdiction over crimes committed before that date by lodging a
declaration under Article 12.3. In no case the ICC shall assume jurisdiction
for crimes committed before the date of July 1, 2002.
Under Article 53.1 ICC the Prosecutor will initiate an investigation
once is satisfied that:
(1) the alleged crime committed, or being committed, is under the
jurisdiction of the court
(2) the situation is not being investigated by the judicial system of a
state (an ICC member state or otherwise) with jurisdiction over the alleged
crime (complementarity), and that the crime is of sufficient gravity. Issues
regarding complementarity and gravity make up the “admissibility”
analysis.
(3) the investigation will serve the interest of justice
The ICC system has been subject to a wide array of critics, such as:
1. Many criticised the Rome Statute for conferring excessive powers
upon the UNSC, whether to refer a situation to the court or, on
the contrary, to halt an ongoing investigation by the court. For
them, these mechanisms provide too much leverage to the UNSC
permanent members over the court (nonetheless the UN and the
ICC, as said already, are legally separated).
2. African leaders raised objections to the ICC for their
disproportionate focus on poor African countries, while being
remiss in addressing its attention to more powerful countries.

10. 3. Others raised criticism to the Rome Statute for not defining the
crime of terrorism as a distinct crime. The reason given for that
omission was that “there was no consensus among the
international community about the elements and criteria to define
that crime”. Prof. Cassesse, President of the Special Tribunal for
Lebanon (STL), as mentioned before, asserted that these
arguments were no longer valid and was critic to those very few
states that insist on the impossibility of defining the crime of
terrorism. Israel signed the Rome Statute but withdrew from it in
2002, inter alias, on grounds of the omission to include the crime
of terrorism in the Rome Statute. The odd outcome of this is that
leaders and soldiers of Israel –the state who has suffered
terrorism the most– may come themselves under the ICC’s
scrutiny for the way they exercise the state’s right of self-defense
against terrorists, while the latter themselves may enjoy impunity
for being outside the ICC’s jurisdiction.
Being those previous considerations said, I think this is a good
opportunity to make a reflection on the most recent and controversial
case raised to the ICC agenda.
On Jan. 1, 2015, Palestine lodged a declaration under article 12.3
accepting ICC’s jurisdiction over alleged crimes committed "in the
occupied Palestinian territory, including East Jerusalem, since June 13,
2014".
On Sep. 2, 2014, however, almost three months before Palestine
filed such declaration accepting ICC’s jurisdiction under previously
mentioned Article 12.3, the Prosecutor Fatou Bensouda stated:
“On 29 November 2012, Palestine's status was upgraded by the
UN General Assembly (UNGA) to "non-member observer State"
through the adoption of resolution 67/19. The Office examined the
legal implications of this development for its purposes and
concluded that while this change did not retroactively validate the

11. previously invalid 2009 declaration lodged without the necessary
standing, Palestine could now join the Rome Statute”.
By anticipating Palestinian fulfilment of statehood criteria -which could
lead to a valid filing of a declaration accepting ICC's jurisdiction and
Palestine becoming a new ICC member state- ICC's Prosecutor Ms.
Bensouda prejudiced Israel.
I am far from being a specialist in law, but evidence shows that Ms
Bensouda decided the matter of Palestine’s statehood without being
legally entitled to do so. I would say she must have refrained from
rendering advisory opinions on matters that eventually can or cannot
come to her office. Her words seem to have clearly prejudiced Israel,
anticipating opinions on crucial questions of fact and law, for they meant
an improperly pro-active invitation for Palestine to join the ICC. Only upon
receiving a declaration under Article 12.3, the Prosecutor is bound to
decide whether the requesting entity has met accepted criteria for
statehood for purposes of that provision.
The Prosecutor’s behaviour seems to have been out of place, as it
would have encouraged Palestinian leaders to use the ICC to advance
their political agenda.
I would like to state again my main concern: the possible misuse of key
international justice resources meant to be devoted to its well-defined
judiciary mission, as well as the undermining of the ICC’s impartiality
and credibility.
As a Member of the European Parliament, I consider necessary to remind
the audience some relevant excerpts of the European Parliament
resolution of 17 November 2011 on EU support for the ICC: facing
challenges and overcoming difficulties
E. whereas maintaining the independence of the ICC is crucial not only to
ensuring that it is fully effective, but also to promoting the universality

12. of the Rome Statute;
G. whereas pursuing the ‘interests of justice’ regardless of political
considerations (Article 53 of the Rome Statute) is the founding principle
of the Court; whereas the ICC plays a key role in promoting
international justice and thus contributing to security, justice and the
rule of law, as well as to the preservation of peace and the
strengthening of international security;
S. whereas the EU and its Member States have been staunch allies of the
Court from its inception, offering continued political, diplomatic,
financial and logistical support, including the promotion of universality
and defending the integrity of the Rome Statute, with a view to
protecting and enhancing the independence of the Court;
The European Parliament
3. Urges Parties and non-parties to the Rome Statute to refrain from
exercising political pressure on the Court in order to preserve and
guarantee its impartiality and to allow for justice based on law, rather
than on political considerations, to be dispensed;
32. Stresses the need for the ICC to expand its focus beyond situations of
armed conflict and, more proactively, to investigate human rights
emergencies that escalate to the level of crimes against humanity, and
situations where domestic authorities are demonstrably unwilling to
investigate, prosecute and punish alleged offenders;
Shouldn’t then all ICC resources and efforts be thoroughly focused on
guaranteeing the achievement of those mentioned goals?
And, reached this point of development of the process, shouldn’t we
wonder if Palestine is really interested in triggering judiciary investigation
of war crimes? Or is it much more a political tactic to foster international
support? Would these tactics not damage instead of paving the process of
peace? Can we even talk about a "Palestinian state" that is capable of
being recognised? Or is it rather an artifice destined to become a new
failed state in a region where there are already too many? Will it become

13. another state where the most extreme ideologies would be funded and
legitimised?
Israel is strongly opposing Palestine to become a member of the ICC. USA
and Germany are deeply concerned on world peace, but only if it is built
on an agreement which is based on the real questions underlying the
Israeli-Palestinian confrontation. If the ICC declares Palestine is not a
State, this will seriously damage the so-called advances on the peace
process. And if the ICC decided to start prosecution, it could start
investigating Palestinian military war crimes, as Israeli crimes could not be
investigated as they are already in a judiciary process at Israeli Courts.
I have no doubt that the peaceful resolution of this conflict is one of the
top priorities in the international stage. Europe has to be relentless when
the time comes to intervene and demand the fulfilment of all
compromises from both parties. But I can't see how any unilateral
recognition of the Palestinian state can help in the current context. It
doesn't safeguard Israel's security. It doesn't stabilize an already turbulent
scenario. And it doesn't encourage the essential need for democratic non-
violent governments that respect human rights and promote the
coexistence of Arabs and Jews in the area.
From my point of view, the unilateral recognition of a Palestinian state and
the attempts to internationalise the conflict invalidate the Oslo Accords
and the bilateral negotiations that try to achieve a two-state solution -- a
solution, do not forget, required and maintained by the European Union. A
solution that is our responsibility to make possible and feasible.
And finally, referring once more to the European Parliament resolution of
17 November 2011 on EU support for the ICC:
whereas the universal nature of justice implies its even application, free of
exceptions and double standards; whereas nowhere should be a safe
haven for those who have committed genocide, crimes against humanity,

14. extrajudicial executions, war crimes, torture, mass rape or forced
disappearances; whereas justice should be seen as an indispensable
element underpinning peace and conflict resolution efforts...
Let me end this questioning and (I hope) not too disconcerting speech
suggesting a concrete initiative for the progressive development of
international law in the matter of international criminal tribunals:
definitively defining the crime of terrorism and including it in the Rome
Statute so that it could come into the ICC’s jurisdiction for its effective
prosecution worldwide. The STL, as explained, set the groundwork for that
definition.
Impunity cannot and must not be an option.