All that is necessary for the triumph of evil is that good men do nothing’ - Edmund Burke


S I E R R A  H E R A L D

Vol 8 No 4

The tendency sometimes to protect perpetrators for the sake of peace...doesn't help society. Impunity should not be allowed to stand. - Kofi Annan on Waki report

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I. Summary

From May 31 to June 11, 2010, an extraordinary gathering in support of the global fight against impunity will take place at the first ever review conference of the International Criminal Court (ICC). High-level representatives from the court’s soon-to-be 111 states parties will meet in Kampala, Uganda, joined by court officials, representatives of non-states parties, the United Nations, and other intergovernmental and regional organizations, and civil society activists from every region of the world. In two weeks of debate and discussion, the growing ICC community will affirm the importance of a collective commitment to bringing to justice those responsible for the worst violations of international criminal law.

Twelve years after the signing of the Rome Statute that established the ICC, and as its predecessor international ad hoc tribunals begin to wind down, that affirmation is needed now more than ever.

While the court has opened investigations in five countries and begun its first trials, this is just a start. In too many places—from Congo to Burma, Yemen to Afghanistan—crimes that shock the world’s conscience continue. Relief from renewed cycles of violence and high expectations for justice, raised in part as the system of international criminal justice has taken shape, demand a robust response from the international community.

And yet, new priorities—including the global economic crisis, terrorism, and climate change—have displaced the mid-1990s’ sense of urgency that gave birth to the ICC following genocide in Rwanda and other mass atrocities. Limits on the reach of international justice, a perception of double standards in its application, and the inevitable cost and length of proceedings have tested the commitment of even the court’s strongest supporters and provided succor to its critics.

In Kampala, the world community has the opportunity to re-engage the fight against impunity. Doing so will require high-level attendance and strong public support by states parties for the ICC’s mission and recognition of the steady progress made by the court in realizing its founders’ aspirations. It will also require, through substantive discussions of key challenges, the identification of critical next steps to advance the fight against impunity, including building enhanced capacity for prosecutions at the national level. The latter can energize the practice of international justice and attract new support. Because the review conference will be held in Kampala, stronger links with communities affected by crimes within the court’s jurisdiction can be forged at the same time.

In preparations over the past months, a number of states parties have shown recognition of this unprecedented opportunity. The Bureau of the Assembly of States Parties (ASP), which had already appointed two facilitators for the review conference (currently Brazil and Kenya), appointed additional country focal points to prepare stocktaking exercises addressing cooperation (Costa Rica and Ireland), complementarity (Denmark and South Africa), the impact of the Rome Statute system on victims and affected communities (Chile and Finland), and peace and justice (Argentina, Democratic Republic of Congo, and Switzerland). Strong progress has been made in developing frameworks for these discussions.

Focal points were also appointed to encourage high-level attendance from several of the regional groupings (Netherlands, Slovenia, Uganda, and Venezuela) and pledges by states parties of practical and political support to the ICC (Netherlands and Peru), and to steer the negotiation of a high-level declaration (Mexico) to be adopted at the conclusion of a general debate in Kampala. A separate resolution on enforcing the ICC’s sentences of imprisonment, originally proposed by Norway and expected to be adopted in Kampala, would encourage increased assistance between international development agencies and states parties toward making additional facilities available to the court.

ICC officials and civil society have contributed to these preparations and participated in states parties’ advance deliberations, and the court and ASP secretariat are preparing public information activities to project conference deliberations and outcomes to a broad audience. Civil society organizations have undertaken a number of projects—including consultations in at least two ICC “situation” countries (countries in which the ICC is investigating) and the preparation of side events for Kampala—in order to bring their perspectives and expertise to bear on discussions. This continues the strong tradition of deep civil society engagement in the development of international justice.

The real tests of these preparations, however, lie ahead.

First, for discussions in Kampala to advance international justice, they must be as substantive as possible. A deepened grasp of these topics and the challenges they present is essential to more effective national and international prosecutions of serious crimes. In the limited time remaining before the review conference, states parties should step up their preparations, building on or convening inter-ministerial consultations. Such preparations and consultations will be important to refine positions and to develop a strategy for making constructive interventions during stocktaking and related side events at the conference. If carried out by a sufficient number of states parties, these advance sessions will enable the discussions in Kampala to be as rich and as productive as possible.

Second, discussions in Kampala must be made to count. A deepened understanding of what more meaningful prosecution of serious international crimes requires from states parties, the ICC, civil society, and other allies must be matched in coming months and years by concrete action on a number of fronts. Resolutions establishing regular ASP discussions on cooperation, giving the ASP a role in facilitating complementarity efforts (that is, helping national court systems take the lead in prosecuting serious international crimes, with the ICC as court of last resort), and increasing the court’s impact in affected communities would each help chart the way. States parties will need to build on discussions in Kampala by reworking national policies to meet the new challenges identified there. States will also need to make good on pledges announced in Kampala. We suggest that the ASP make it a priority to ensure follow-up on pledges and make pledging a regular feature at future ASP sessions.

In order to assist states in fully realizing the review conference as a milestone in the development of the ICC and an emerging system of international justice, this report offers reflections and recommendations on each of the four stocktaking topics.

The ICC’s success is directly related to the cooperation it receives from states parties and intergovernmental organizations. Without its own police force to facilitate investigations, locate witnesses, and apprehend suspects, the ICC must rely on the cooperation of states parties to fulfill its mandate. The ICC also requires active political support from states parties to defend its mission, particularly in the face of unprincipled attacks by the court’s opponents. Although there has been broad recognition within the ASP of the importance of cooperation, the requisite support from national authorities and political backing have not always been forthcoming. Substantive discussion during the review conference of relevant experience to date with the ICC and other international tribunals, identification of best practices, and a commitment to carry these discussions forward in the ASP on a regular basis can make a practical difference in ensuring necessary cooperation with the court.

Discussions of complementarity in Kampala offer perhaps the greatest opportunity to expand the fight against impunity. Stocktaking on this issue will focus on “positive complementarity,” the concerted international and domestic efforts to strengthen and better enable national jurisdictions to conduct credible and effective national investigations and trials of Rome Statute crimes. Enhanced international assistance toward this end is essential if the ICC is to remain truly a court of last resort, and to bridge the impunity gap that can exist in ICC situations where only a handful of perpetrators are brought to trial by the court. States parties, non-states parties, international organizations, the court, and civil society each have a role to play. Discussions on positive complementarity within the ASP are particularly appropriate: as a body of states committed to the fight against impunity, the ASP is uniquely positioned to assess current efforts and identify priorities for advancing prosecution of serious international crimes in national systems, a focus that is too often lacking in broader rule-of-law reforms.

Individuals and communities affected by the crimes under the ICC’s investigation are the first among the court’s many constituencies. Yet, having an impact in such communities is a unique challenge for a court based thousands of kilometers away from where the crimes occurred. Discussions on impact at Kampala will usefully focus attention on the unique tools at the ICC’s disposal, including victim participation in proceedings, and reparations and assistance to victims through the Trust Fund for Victims. Participants will also examine the progress the court has already made in achieving impact in affected communities. Discussions should address what further progress is needed, while bearing in mind that the court is still in its early phase of development, with the first full cycle of judicial proceedings not yet concluded. Continued attention to outreach and field engagement and greater appreciation of the importance of the prosecutor’s selection of cases and charges is needed.

The court’s impact, however, does not depend solely on the actions and decisions of court officials and staff. Discussions should recognize that states parties—whether providing additional resources for outreach and public information efforts, contributing to the Trust Fund for Victims, supporting an enhanced ICC presence in situation countries, or engaging with key court strategies—have important contributions to make in maximizing the court’s impact in affected communities.

The peace and justice nexus is the fourth stocktaking topic. The ICC’s mandate to investigate and prosecute war crimes, crimes against humanity, and genocide in the course of ongoing conflicts has often raised questions about the relationship between peace and justice; the call to suspend or “sequence” justice in exchange for a possible end to a conflict has arisen in conjunction with the court’s work in a number of country situations. While justice is an important end in its own right, Human Rights Watch’s research in many different conflict situations over 20 years has also demonstrated that a decision to ignore atrocities, thus reinforcing a culture of impunity, may carry a high price. While there are sometimes real tensions between peace and justice, the goal of the international community should be the careful management of this tension, rather than its exploitation. While the topic does not lend itself to a resolution or pledges in Kampala, greater clarity on this subject is nonetheless crucial for the future of the court’s work.

The stocktaking topics, of course, are often interconnected. Unexecuted arrest warrants may represent a failure of state cooperation, but may also reflect deficits in national capacity. In the absence of arrests and trials, the ICC’s impact in affected communities is limited. Similarly, exaggerated claims of a contradiction between peace and justice may dampen support for the ICC’s efforts and make officials less likely to fulfill court cooperation requests, including in the execution of arrest warrants. Consideration of these topics on their own and as they relate to each other will help to identify gaps in current practice and chart the way forward.

The review conference has much more on its agenda than stocktaking. Proposed amendments and review of article 124, the Transitional Provision, will dominate discussions in the second half of the conference.

Human Rights Watch supports the amendment proposed initially by Belgium to extend to non-international armed conflicts the criminalization of the use of certain weapons, including poison or poisoned weapons; gases and all analogous liquids, materials or devices; and bullets that expand or flatten easily in the human body (already criminalized under the Rome Statute in international armed conflicts under article 8(2)(b)(xvii-xix)). Human Rights Watch believes that weapons that pose an undue threat to civilian populations should be banned regardless of whether the conflict is international or non-international in character.

We have not participated actively in negotiations on the crime of aggression. We believe that we are most effective as a human rights organization if we do not opine on issues of jus ad bellum, the lawfulness of waging war, and instead adopt, like the International Committee of the Red Cross, an approach of strict neutrality during armed conflicts. This neutrality enables us, without taking sides, to focus on the conduct of armed forces in war, or jus in bello, and thereby promote our goal of encouraging all parties to a conflict to respect international humanitarian law. But while we have taken no position on the definitional aspects of aggression, from the start of the preparatory committee negotiations in 1996 we have opposed any Security Council control of the crimes within the jurisdiction of the court. We believed then, and still do, that control over the court’s jurisdiction—a so-called jurisdictional filter—by a political organ would undermine the ICC’s judicial independence.

Regardless of any jurisdictional filter, however, Human Rights Watch has serious concerns about adoption of the crime of aggression in Kampala. Taking up prosecutions of aggression could link the ICC to highly politicized disputes that could undermine the court’s credibility and ability to address genocide, war crimes, and crimes against humanity. At the same time, not taking up an aggression prosecution because of jurisdictional or resource restrictions could also jeopardize the court’s work and credibility. On the basis of close observation of the court, including in situation countries, we fear that inclusion of a definition and jurisdictional filter could diminish or appear to diminish the court’s role as an impartial judicial arbiter of international criminal law. We urge states parties to conduct their discussions in a way that minimizes divisiveness.

The Kampala review conference caps the first phase of the ICC’s development. In stocktaking discussions and careful consideration of amendment proposals, in plenary sessions on the formal agenda and in side events hosted by governments and civil society, there will be important opportunities for states parties to affirm their commitment to the ICC and to hold perpetrators of the world’s worst crimes accountable for their actions. But the review conference is also a beginning.

With the work of the international ad hoc tribunals nearing completion, the fight against impunity and the practice of international justice is moving into a new phase. In this next era, the role of the ICC as the keystone of an emerging system of international justice will become increasingly important, and consolidation of its progress is essential. Equally necessary will be enhancing the capacity of national authorities to bring prosecutions that extend the reach of justice. A fully realized review conference will make significant strides on both fronts, propelling the ICC community forward and bringing realization of the aspirations of the Rome Statute within sight.

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