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I. Introduction

The fifth session of the Assembly of States Parties (ASP) has the potential to be a milestone in the evolution of the International Criminal Court (ICC). For the first time, states parties should have significant opportunities to discuss substantive aspects of ICC policy and practice at an ASP session. While scrupulously respecting the ICC’s independence, states parties must make the most of these opportunities in order to promote the court’s development as an institution that can achieve its mandate to bring perpetrators of the most serious crimes to justice when national courts are unable or unwilling to do so. In making the most of the opportunities for discussion, states parties will also increase their understanding of the court’s work and challenges, which will enable the ASP to more effectively exercise its functions. States parties must further take decisions at this ASP session to ensure that the ICC has necessary support and cooperation. The ICC has now moved more fully to an operational phase and it is actively in need of cooperation to conduct investigations and trials.

During the past year, the ICC made important strides. On March 17, 2006, Thomas Lubanga, a Congolese militia leader, became the first person surrendered to the ICC.¹ Following Lubanga’s arrest and transfer to the court, Pre-Trial Chamber I held proceedings in his case and issued notable decisions² on aspects of the Rome Statute.³ The potential for participation by victims at the ICC also took a step forward: the court received more than 100 applications and granted four victims the opportunity to participate in the Lubanga case.⁴ In addition, investigations regarding crimes committed in the Democratic Republic of Congo (DRC), northern Uganda, and Darfur continued throughout the year. Significant progress in the court’s institutional growth furthermore took place: notably, the court prepared a Strategic Plan to guide its operations for years to come. Other positive developments include increased ICC presence and activities in situation countries.

These are welcome advances, particularly given the enormous challenges continually faced by the ICC. One of the most significant challenges is the court’s dependence on external cooperation to complete essential tasks. For example, more than one year after arrest warrants by the ICC were issued in the northern Uganda situation against five leaders of the Lord’s Resistance Army, not one warrant has been executed. Additional challenges include ongoing security concerns; logistical constraints; and the difficulty of customizing operations to each situation under investigation.

Critical gaps also exist. Most significantly, the ICC continues to place insufficient emphasis on making its work relevant to the communities most affected by the crimes committed. While fair and expeditious investigations and trials are the most fundamental aspects of the court’s work, the ICC will fail in its mission if it lacks resonance with the communities that have suffered most directly as a result of heinous crimes committed.

This paper lays out 27 recommendations to encourage the ASP to promote the positive development of the ICC, including by granting resources for priority areas, and for the ASP to consider how it can ensure that the ICC obtains necessary cooperation. These are essential to the court achieving its mandate to end impunity for the most serious crimes, and ensuring that it does not disappoint those it was created to serve.