III. ASP Functioning and CooperationA. Improved ASP Structure and Working MethodsAn active ASP is crucial for the assembly to properly exercise its functions under the Rome Statute and to ensure that the ICC becomes an effective institution. As a new and unique court facing enormous challenges, the ICC needs close, but appropriate, scrutiny and feedback. In this regard, the significant strengthening of ASP working methods during the past four years is welcome. The Bureau now holds regular meetings, with eight meetings in 2006, and has taken steps to improve transparency and coordination with non-Bureau members, such as by providing public reports of meetings.57 The Bureau’s two permanent working groups also meet regularly; interact with the ICC, NGOs and experts; produce reports to facilitate the ASP’s work; and assist in preparation for the ASP session. These practices should continue. They facilitate important sustained engagement with ICC issues and will hopefully enable the ASP to reach significant decisions at the upcoming session. This year’s ASP session includes other enhancements including a longer general debate at the commencement of the session, and a longer session overall. The longer session creates important opportunities for the ASP to discuss issues in greater depth and to minimize the number of parallel informal working groups, which hampers the ability of smaller delegations to participate effectively. Both the longer session and the general debate should further enable discussions to move from the largely technical budgetary discussions that have consumed the majority of past sessions to more substantive and overarching discussion of the ICC’s work and challenges. In addition to these steps, we believe several additional actions detailed below should be taken to ensure that the ASP is able to play its role effectively in promoting positive development of the ICC, including by improving the quality of work produced by working groups, which has been uneven. Human Rights Watch recommends:
B. CooperationEnsuring that the ICC receives necessary cooperation is an important aspect of the Rome Statute. It is also absolutely crucial to the court’s success. Given the ICC’s mandate, withholding of cooperation—both by governments and individuals—is predictable. But with no enforcement mechanisms of its own, the ICC is totally dependent on the cooperation it receives. With the ICC now actively investigating and prosecuting cases, it is essential that the ASP actively takes steps to ensure the court achieves necessary cooperation to do its work. Experience from the ad hoc tribunals and the Special Court for Sierra Leone underscores the crucial importance of cooperation. Some of their biggest challenges have related to the need for cooperation to ensure arrests of indictees or to carry out investigations. In this regard, pressure by states has been crucial to the wave of voluntary surrenders to the ICTY, and the recent surrender of Charles Taylor to the Special Court. States parties have rightly stressed the importance of cooperation, and their commitment to assisting the court to achieve cooperation.58 But while some efforts have occurred to date,59 they are far from adequate. For example, lack of execution of arrest warrants against leaders of the Lord’s Resistance Army (LRA) has been a significant obstacle to the ICC’s progress in prosecuting crimes committed in the situation in northern Uganda.60 Current developments related to peace talks in Juba, Southern Sudan, may make immediate action to secure arrest inappropriate. However, the Juba process should not obscure that the arrest warrants against the LRA leaders have not been executed for more than one year after they were unsealed.61 Execution of warrants is precisely the type of area where substantial assistance to the ICC by states parties and the ASP must occur.62 This should include active efforts by states on whose territories the suspects may be, and by states that have a particular commitment, resources, or influence that can advance the suspect’s surrender. Efforts should at a minimum include strategizing by such states, including with other relevant actors like the UN Department of Peacekeeping Operations. Additional crucial forms of cooperation that may be needed by the ICC in all situations include logistical support; providing evidence; executing searches and seizures; tracing assets; providing witness relocation; and making incarceration facilities available. The lack of sustained and robust engagement to secure arrests after the unsealing of the LRA warrants raises questions about prospects for the ICC to conduct trials.63 Notably, senior ICC officials have identified cooperation as a major concern in recent public statements and at diplomatic briefings.64 ICC officials have an important role to play in highlighting what kind of cooperation is needed and expected, along with the ICC’s own strategies to secure it. They have not made such information clear enough to date, although ICC efforts to keep states parties informed about its work and challenges, and to strengthen the OTP’s capacity regarding cooperation are welcome. 65 At the same time, the ASP and states parties must effectively play their role in ensuring cooperation. The actions listed below should be taken to advance this objective. Actions at the upcoming ASP to promote cooperation
A working group on cooperation during the ASP session could be highly useful as cooperation is an important and timely issue that includes a number of avenues for the ASP to explore. Even a brief working group could help kick-start discussions between states parties and the ICC about ways to address cooperation issues most effectively. It would also allow the ICC to provide more explicit information to states parties about the assistance it needs.
We understand that some initial discussion at the ICC and between states parties has taken place regarding creating a working group on cooperation to meet throughout the year. Such a group could take up important tasks to assist the ICC. Its work could focus on the types of measures the ASP could take proactively to encourage cooperation; analysis of the role of the ASP in relation to cooperation (which might potentially include preparatory work regarding the ASP’s role vis-a-vis non-cooperation consistent with articles 87 and 112 of the Rome Statute); and encouraging states parties to adopt implementing legislation. The working group could further serve as an important first point of contact and dialogue for the ICC with the ASP should cooperation needs and difficulties arise. The existence of the group could play a role in providing the ICC with “political back-up” as it seeks cooperation.
Such task forces might provide a useful forum for states parties, the ICC, and other relevant actors to strategize on responding to specific cooperation challenges. It could include states parties most committed or with the most influence to positively impact a cooperation issue, and invite intergovernmental organizations as relevant, such as UN agencies. Such a task force might be valuable regarding execution of the ICC arrest warrants for LRA leaders.
This includes approval of international cooperation advisers for the DRC, Darfur, and northern Uganda, along with a fourth situation. In this regard, the ASP should consider rejecting the CBF’s proposed cut of one of these positions.66 It also includes support for internal reassignments to provide for information and tracking analysts in the Planning and Operations Section.67
Independent actions by states parties at their own initiative to promote cooperationStates parties should take the following actions at their own initiative to enhance cooperation with the ICC, if they have not already done so.
We understand that some ICC cooperation requests have been declined as the necessary national legislative framework was not in place or it was not precise enough. ICC implementing legislation with sufficient specificity on cooperation should be completed now to facilitate future cooperation.69 Forms of cooperation encompassed should include logistical support; assistance in the questioning of persons; providing evidence in states parties’ possession; executing searches and seizures; and identifying and tracing assets.70
In prosecutions involving serious crimes, witness protection is almost always a major issue and witness relocation can be essential in certain instances. Given that the ICC operates in ongoing conflicts, the ability to relocate witnesses outside the country is even more important. We understand that only a few relocation agreements have been concluded to date, which is unfortunate.
Offering incarceration facilities to accommodate persons convicted by international criminal tribunals is admittedly one of the less appealing aspects of international justice. However, it is vitally important. That the relocation of Charles Taylor’s trial to The Hague this year was stalled for more than two months pending a state’s offer of such facilities if he were convicted highlights the need for states to proactively approach ensuring incarceration facilities for persons convicted by the ICC.73 We are concerned that to our knowledge only one country has concluded such an agreement.74
Agreements between regional organizations and the ICC are an important way to facilitate cooperation.75 Particularly given the ICC’s current investigations in Africa, conclusion of an AU-ICC relationship agreement is especially important. We welcome recent statements by African states parties calling for this agreement and encourage additional efforts toward this goal.76
Given the Sudanese government’s opposition to the ICC’s investigation in Darfur, such pressure may be needed vis-a-vis Khartoum. The ICC prosecutor’s upcoming Security Council briefing should provide important information on cooperation with the ICC by the Sudanese government to date.77 If Sudan is not fully complying with the prosecutor’s requests for assistance, states parties should press Sudan to cooperate. In this regard, the ASP and the court might also consider utilizing criteria developed by the International Commission of Inquiry on Darfur to appraise the cooperation of the Sudanese government.78
Given recent debate on justice and the ICC warrants issued against LRA leaders within the context of the recent peace talks on northern Uganda, states parties should press for an outcome that includes both a peace agreement and fair and credible prosecutions for the most serious crimes in accordance with international standards. Ending the conflict in northern Uganda is crucial for the people there, who have suffered so egregiously for nearly two decades.79 The current talks hold promise of ending the conflict, although the end result remains unclear. Although some have argued for a peace agreement accompanied by the ICC arrest warrants against LRA leaders being dropped, credible and fair prosecutions for serious crimes are an essential component to a durable peace. 80 States parties should also make clear that a UN Security Council deferral under article 16 of the Rome Statute would be inappropriate in this instance, and states parties on the Security Council have a particular role to play in opposing an article 16 deferral.81 In the absence of credible alternatives at the national level, such a deferral would shield the LRA leadership from prosecution, perhaps indefinitely if renewed. It might also open the door to dangerous and inappropriate interference by the Security Council in the ICC. We have already seen unprincipled use of the Security Council by one permanent member to pursue unlawful interference with the ICC through Security Council resolutions 1422 and 1487. First and foremost, these steps are important for the people of Uganda. Such steps are also crucial for the ICC as an institution. The court could not achieve its mandate to bring justice for the most serious crimes if it were primarily reduced to a bargaining chip in peace negotiations. Its raison d’être to “put an end to impunity for the perpetrators” of the most serious crimes as articulated in the preamble to the Rome Statute would be nullified.
Over the past year, the ICC has faced criticisms of being a “Western court” that practices selective justice. While the critique is inaccurate, it has the potential to not only damage the court’s credibility, but its ability to obtain cooperation from states and intergovernmental organizations in completing important tasks. The fact that all situations currently under investigation are in Africa furthers this impression. We see it as crucially important for states parties to make efforts to convey that the ICC is a global institution. States parties should indicate that the ICC now enjoys support and participation from 104 states around the world including 29 from Africa, 22 from Latin America and the Caribbean, and 12 from Asia.82 States parties should further indicate that they have come together with other states in a conviction that there must be fair and credible prosecutions for the most serious crimes. States parties should stress that this is consistent with international, not “Western,” law. We urge all states parties to provide such clarification at appropriate moments in national, bilateral, and multilateral fora. Of course, African and Latin American states parties are particularly well placed to do so. We believe such efforts could be especially valuable and relevant during debates in the UN General Assembly and Security Council, African Union, Organization of American States, and the ASP session. 57 The appointment of vice presidents in The Hague also helps to facilitate dialogue between the diplomatic communities in New York and The Hague. Reports on the Bureau’s meetings are available at http://www.icc-cpi.int/asp/aspbureau.html (accessed November 6, 2006). 58 This emphasis was evident in the recent UN General Assembly session in which the report of the ICC was considered (October 9, 2006). Statements by states parties are available at http://www.iccnow.org/?mod=browserdoc&type=13&module=1006 (accessed November 6, 2006). 59 This includes: the ICC’s conclusion of agreements with the UN and EU, with the host state on detention and transport of suspects, and with a few states on the relocation of witnesses; the signing of an agreement with Austria on the enforcement of sentences; ratification of the Agreement on Privileges and Immunities of the Court by 42 states parties; enactment by 35 countries of implementing legislation; and establishment of the New York Liaison Office. See Agreement between the International Criminal Court and the European Union on Cooperation and Assistance, ICC-PRES/01-01-06, April 10, 2006, entry into force May 1, 2006, http://www.icc-cpi.int/library/about/officialjournal/ICC-PRES-01-01-06_English.pdf (accessed November 6, 2006); “Austria Becomes the first State to sign an Agreement with the ICC on the Enforcement of Sentences,” ICC press release, October 27, 2005, http://www.icc-cpi.int/press/pressreleases/116.html (accessed November 6, 2006); Coalition for the International Criminal Court (CICC), “Ratification and Signature of the Agreement on the Privileges and Immunities of the Court (APIC), by Region,” http://www.iccnow.org/documents/CICC_APIClist_10oct26_updated.pdf (accessed November 6, 2006); ICC-ASP, Report on the activities of the Court, ICC-ASP/5/15, October 17, 2006, paras. 86, 100. See also Amnesty International’s webpage on the status of implementing legislation: http://web.amnesty.org/pages/icc-implementation-eng (accessed November 6, 2006). 60 As already noted above, to date the ICC has issued arrest warrants for six individuals, of which one, in relation to the DRC investigation, has been executed (Thomas Lubanga Dyilo). See Prosecutor v. Thomas Lubanga Dyilo, International Criminal Court, Case No. ICC-01/04-01/06, Warrant of Arrest, February 10, 2006. 61 The arrest warrants for five senior leaders of the LRA were unsealed on October 13, 2005. See “Warrant of Arrest unsealed against five LRA Commanders,” ICC press release, October 14, 2005, http://www.icc-cpi.int/press/pressreleases/114.html (accessed November 6, 2006). 62 As described by a representative of the Ugandan government, “The LRA, including the five named in the ICC arrest warrants, are located in three countries, two of whom are members of the ICC and one of whom signed an agreement with the OTP to arrest. Within these three countries, there are five military forces that may be able to assist in arrest. These include the national armies of Uganda, DRC, Sudan as well as the UN peacekeeping forces of MONUC and UNMIS…. Giving [e]ffect to the warrants of arrest is the responsibility of the state parties to the ICC. The Government of Uganda has done what it can to fulfill its obligations. However, the GoU would like to stress that successful execution of the arrest warrants required concerted international and regional cooperation… What Uganda has experienced serves as an example of the acute need for international cooperation to give effect to ICC arrest warrants and makes us realise even more the need for all States Parties to cooperate with the ICC in fulfilling their obligations.” “Second Public Hearing of the Prosecutor of the ICC: Intervention by Ambassador M. Blaak,” The Hague, September 25, 2006, document on file with Human Rights Watch. See also Letter from the Solicitor-General of Uganda to the Registrar of the International Criminal Court, October 4, 2006, document on file with Human Rights Watch. 63 At the same time, we appreciate that some efforts in these areas have been undertaken, some of which cannot be made public due to their sensitivity. We also note efforts by UN peacekeeping forces to “seek out” LRA leaders in Garamba Park and the unfortunate death of eight Guatemalan peacekeepers in this effort. See, for example, Emmy Allio, “UN Plot to Nab Otti Backfires,” New Vision (Uganda), January 29, 2006; Blake Lambert, “UN steps up peace efforts in Congo ahead of April vote,” Christian Science Monitor, January 30, 2006. 64 President of the ICC’s Address to the United Nations General Assembly, October 9, 2006, http://www.icc-cpi.int/library/organs/presidency/PK_20061009_en.pdf (accessed November 6, 2006); “Eighth Diplomatic Briefing of the International Criminal Court, 26 October 2006,” Information Package, document on file with Human Rights Watch; ICC, Report on the activities of the Court, ICC-ASP/5/15, October 17, 2006, para. 7. 65 In this regard, ongoing dialogue undertaken by the ICC with states parties (such as regular diplomatic briefings and meetings with the Friends of the ICC and regional organizations and reports to the UN General Assembly) has occurred. 66 CBF Report, para. 64. 67 ICC Proposed Programme Budget for 2007, para. 122. 68 This is consistent with articles 87 and 88 of the Rome Statute. Article 88 states, “States Parties shall ensure that there are procedures available under their national law for all of the forms of cooperation which are specified under this Part.” 69 Where implementing legislation has already been passed that is not sufficiently precise, states parties should seek to amend the legislation, and until such amendments are made, enter into specific cooperation agreements with the ICC as necessary. 70 See Rome Statute, art. 93. 71 This is consistent with article 93 of the Rome Statute, which states that, “States Parties shall … comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions: … (e) Facilitating the voluntary appearance of persons as witnesses or experts before the Court; … (j) The Protection of victims and witnesses and the preservation of evidence.” 72 This is consistent with articles 103–111 of the Rome Statute. Article 103(3) states, “States Parties should share the responsibility for enforcing sentences of imprisonment, in accordance with principles of equitable distribution, as provided in the Rules of Procedure and Evidence.” 73 The situation with regard to Taylor was particularly troubling as the request for relocation was made on the basis of security concerns. The relocation only took place when the United Kingdom government stepped forward after more than two months to offer the needed facilities. An offer of incarceration facilities by a third government was one of the conditions set by the Netherlands government in allowing Taylor’s trial to be relocated to The Hague. 74 See “Austria Becomes the first State to sign an Agreement with the ICC on the Enforcement of Sentences,” ICC press release. 75 In this regard, the EU-ICC relationship agreement is welcome. Agreement between the International Criminal Court and the European Union on Cooperation and Assistance, ICC-PRES/01-01-06. 76 The recent statement by 28 African states parties during the General Assembly session in which the Report of the ICC was considered states that these states “reiterate the call … made last year to the African Union to conclude a relationship agreement with the International Criminal Court in the same manner as the United Nations has done.” Statement by Mr. Sabelo Sivuyile Maqungo, on behalf of African Member States to the International Criminal Court Statute before the General Assembly, October 9, 2006. 77 The prosecutor will brief the Security Council in December 2006. See United Nations Security Council, Resolution 1593 (2005), S/RES/1593 (2005), para. 8. 78 These criteria have been identified as follows: “(1) freedom of movement throughout the territory; (2) unhindered access to all places and establishments and freedom to meet and interview any person whose testimony is considered necessary for the fulfillment of its mandate; (3) free access to all sources of information; (4) appropriate security arrangements for the personnel and documents of the commission; (5) protection of victims and witnesses and those who appear before the commission.” Observations of the United Nations High Commissioner for Human Rights invited in Application of Rule 103 of the Rules of Procedure and Evidence, October 10, 2006, http://www.icc-cpi.int/library/cases/ICC-02-05-19_English.pdf (accessed November 6, 2006), para. 58. 79 Human Rights Watch has documented for years human rights violations committed by the LRA, including torture, sexual abuse, mutilations, forced recruitment through abduction of children, and forcing children to kill even members of their own families. We have also documented abuses committed by Ugandan government forces, including the beating, rape, and killing of civilians. We have consistently urged that perpetrators on both sides cease abuses and that those responsible be held to account. 80 Some have suggested traditional justice in lieu of ICC prosecutions. While traditional justice measures may have an important role to play in a comprehensive approach to accountability and community reconciliation, they are unlikely to provide effective prosecution accompanied by fair trial guarantees—such as the right to a fair and public hearing by an independent and impartial tribunal and the presumption of innocence—which is required under international law for cases involving serious crimes. 81 Under article 16, the Security Council may defer ICC investigation or prosecution for 12 months on the basis of its Chapter VII authority. Rome Statute, art. 16. 82 See CICC Factsheet, “States Parties to the Rome Statute of the ICC, according to the UN General Assembly Regional Groups,” November 1, 2006, http://www.iccnow.org/documents/RATIFICATIONSbyUNGroups.pdf (accessed November 9, 2006). |