Improve Impact, Cooperation in Court’s Second Decade
November 12, 2012
After its first decade the ICC’s profile is higher than ever but it has stumbled in getting the job done. Court officials and governments should step up efforts to ensure that the ICC can deliver justice for the world’s worst crimes.
Elizabeth Evenson, senior international justice counsel

(The Hague) – Member countries of the International Criminal Court (ICC) at their annual meeting should redouble support for the court as it enters its second decade, Human Rights Watch said today. The ICC reached key milestones in 2012 – including its first conviction – but faces challenges in bringing justice for war crimes, crimes against humanity, and genocide.

The 121 member countries will take part in the annual session of the Assembly of States Parties that begins on November 14, 2012, in The Hague. This will be the first meeting of states parties following the inauguration of the ICC’s new prosecutor, Fatou Bensouda, and governments will elect her deputy at this session.

“After its first decade the ICC’s profile is higher than ever but it has stumbled in getting the job done,” said Elizabeth Evenson, senior international justice counsel at Human Rights Watch. “Court officials and governments should step up efforts to ensure that the ICC can deliver justice for the world’s worst crimes.”

Securing arrests of those sought by ICC arrest warrants – a key challenge – is on the agenda at this session during the first assembly-wide debate on cooperation. Joseph Kony, leader of the Lord’s Resistance Army, a rebel group that originated in Uganda, and Bosco Ntaganda, a former rebel leader turned army generalwho then mutinied against the Democratic Republic of Congo in April 2012, are among the court’s fugitives. Human Rights Watch has documented continued human rights violations in central Africa by forces under the commands of Kony and Ntaganda. The ICC depends on countries to make arrests and turn suspects over to the court.

“Without arrests there can be no justice,” Evenson said. “By drawing concrete lessons from other war crimes tribunals, countries can use their meeting to increase practical support for arrest efforts.”

Bensouda made a strong commitment in her first months on the job to put victims at the heart of the court’s work, including during her recent visit to Kenya, Human Rights Watch said. Her office is conducting investigations into the country’s 2007-08 post-election violence.
Member countries also should refocus their attention on the importance of the ICC to victims, Human Rights Watch said. The assembly’s earlier commitment to strengthening the court’s impact through strong outreach and operations in countries where the ICC has cases has been overshadowed by difficult budget negotiations at its annual sessions. While court officials need to spend resources wisely, including by speeding up proceedings, this should not come at the expense of engaging with victim communities, Human Rights Watch said.

“International justice has often been faulted for being too distant from the victims it serves,” Evenson said. “Governments should support bringing the ICC closer to victim communities in policy and practice and equip the court to meet this goal.”

In a dedicated segment, the assembly meeting will spotlight international efforts to bolster national-level trials of the worst international crimes. ICC members should make use of the assembly to exchange national experiences, both in assisting and conducting national trials of serious crimes. In addition to funding capacity-building projects, governments should also work together to ensure national authorities carry out independent and impartial trials of the most serious crimes, Human Rights Watch said.

Recent developments, including Senegal’s decision to go forward with the African Union-endorsed trial of former Chadian leader Hissène Habré, hold out the possibility to extend the reach of justice for serious crimes beyond what can be delivered at the international level, Human Rights Watch said.

During the session, members will also mark the 10 years since the ICC’s treaty, the Rome Statute, entered into force. The court opened its doors in 2003 and has begun investigations in seven countries.

In a memorandum issued to governments on November 7, Human Rights Watch called for heightened political commitment to the ICC. The United Nations Security Council has not acted on calls to refer the situation in Syria to the ICC prosecutor despite the situation’s need for accountability. And in Darfur and Libya – the two cases the Security Council has sent to the court – it has provided only weak support. ICC members should use assembly discussions to improve dialogue between the court and the Security Council, Human Rights Watch said.

Human Rights Watch also called on governments to set up a permanent working group to address cooperation needs year-round. In addition to arrests, the ICC relies on governments for assistance in its investigations, prosecutions, and witness protection programs.

Background
The International Criminal Court is the world’s first permanent court mandated to bring to justice people responsible for war crimes, crimes against humanity, and genocide when national courts are unable or unwilling to do so. The 10th anniversary of the entry into force of the ICC treaty, the Rome Statute, was in July 2012. The treaty entered into force just four years after 120 states adopted it during a conference in Rome in 1998.

The Assembly of States Parties was created by the Rome Statute to provide management oversight of the administration of the court. It consists of representatives of each member state and is required to meet at least once a year but can meet more often as required. The current assembly president is Ambassador Tiina Intelmann of Estonia.

The court’s jurisdiction over alleged international crimes may be triggered in one of three ways. ICC member states or the United Nations Security Council may refer a situation, meaning a specific set of events, to the ICC prosecutor, or the ICC prosecutor may seek on his or her own motion authorization by a pretrial chamber of ICC judges to open an investigation.

The ICC prosecutor has opened investigations in the Central African Republic, Côte d’Ivoire, the Darfur region of Sudan, Democratic Republic of Congo, Kenya, Libya, and northern Uganda. Based on those investigations, there are 13 pending cases against 21 individuals.

The prosecutor is also examining a number of other situations in countries around the world. These include Afghanistan, Colombia, Georgia, Guinea, Honduras, Nigeria, Mali, and South Korea.

Five people are in ICC custody in The Hague, and three others accused of war crimes in connection with an attack on African Union peacekeepers in Darfur appeared voluntarily during pretrial proceedings. The ICC’s pretrial chamber declined to confirm charges against one of the three, Bahr Idriss Abu Garda; a trial of the other two suspects has not yet begun. A pretrial chamber also declined to confirm charges against Callixte Mburashimana for crimes against humanity and war crimes allegedly committed in 2009 during the armed conflict in the Kivus region of the Democratic Republic of Congo.

The court handed down a conviction in March 2012 in the court’s first trial – of the Congolese militia leader Thomas Lubanga Dyilo on charges of using child soldiers. In the Lubanga case, judges also issued, in August, the ICC’s first decision setting principles for providing reparations to victims.

The trial of Jean-Pierre Bemba Gombo, a former Congolese vice president, rebel commander, and opposition party leader, on charges of crimes committed in neighboring Central African Republic is under way, and a verdict is expected in the coming months in the joint trial of two Congolese rebel leaders, Germain Katanga and Mathieu Ngudjolo Chui. Four Kenyans –including prominent political leaders affiliated with both sides of the 2007-2008 election violence – are expected to stand trial in 2013. Cases against two other Kenyans were dropped earlier this year.

President Omar al-Bashir of Sudan and three others sought for crimes in Darfur remain fugitives. Arrest warrants are also outstanding for leaders of the Lord’s Resistance Army; Ntaganda, the former rebel commander who had been integrated into the Congolese national army before he mutinied in early April 2012; and two suspects in the Libya situation, Saif al-Islam Gaddafi and Abdullah Sanussi, both of whom are being held in Libya. The court has suspended Libya’s transfer of Saif al-Islam Gaddafi, son of former Libyan leader Muammar Gaddafi, to The Hague pending the outcome of Libya’s challenge to the court’s jurisdiction over the case. ICC judges terminated the case against Muammar Gaddafi after he was killed on October 20, 2011.