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I. Introduction

The establishment of the International Criminal Court (ICC) three years ago represents a high water mark in the international community’s commitment to end the impunity associated with genocide, crimes against humanity and war crimes. As a permanent court, the ICC was envisioned by its founders to be a judicial institution that would build upon the ground-breaking work of the two ad hoc tribunals. The Rome Statute’s provisions were aimed at bridging the gap between international criminal proceedings and the communities most devastated by horrific crimes. The ICC was envisioned to be a mechanism for bringing justice in a broader way to victims by assisting with the re-establishment of the rule of law in war-torn societies and acting as a deterrent for future crimes. These aspirations are articulated in the statute’s preamble:

Mindful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity. . . .

Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation,

Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such

crimes . . .

The Rome Statute’s early entry into force and its recent 100th ratification underscore the urgent need for the ICC.  As the United Nations Secretary-General aptly stated in 2004, “Undoubtedly, the most significant recent development in the international community’s long struggle to advance the cause of justice and rule of law was the establishment of the International Criminal Court.”¹  For those victimized or threatened by mass slaughter, rape as a weapon of war or forcible displacement on ethnic grounds, the court generates great hopes and expectations.   

Establishing a new, permanent international criminal court is an unprecedented and enormously challenging undertaking.  In the two and one half years since the inauguration of its judges and prosecutor, the ICC has made important advances.  The court has moved from its establishment phase to actual operations and has reached significant milestones in the past year.  Active investigations are underway in Sudan, Uganda and the Democratic Republic of the Congo.  The Security Council, in a historic first, overcame strong initial opposition and referred a situation on the territory of a non-State Party to the court.  The first arrest warrants were issued and served on July 8, 2005, and unsealed on October 13, 2005.  The judicial organs of the court have begun to issue important case law on procedural matters of importance.  Field offices have been opened and victims in the Congo have filed the first application to participate in proceedings.  The Office of the Prosecutor (OTP) has developed an extensive digital database on Rome Statute crimes which it intends to make available to government ministries to promote complementarity.  The court has improved its internal functioning by creating a Coordinating Council to better implement the “one court principle.”  Court officials have also created a number of other inter-organ working groups to improve coordination on issues of common concern.  This represents real progress.  

At the same time, the development of practice and policy in several key areas – including outreach, field engagement, witness and victim protection, and victims’ participation – is cause for  some real concern.  The practice in these areas raises questions about the underlying vision guiding the institution and whether it is adequately focused on benefiting those most affected by the crimes.  

Human Rights Watch believes that a broad view of the Rome Statute is necessary for the court to address the unique responsibilities and challenges facing an international criminal court seated hundreds, if not thousands, of miles away from where the crimes occurred.  Our field experience suggests that the ICC’s mandate will not be fulfilled solely by conducting efficient, effective investigations with fair trials – however crucial those tasks are.  Proper implementation of the ICC’s mandate requires prioritizing efforts to maximize the court's impact with those most directly affected by the crimes it is trying.  A planned, deliberate effort is necessary for the trials to have a lasting impact.  Unless the court makes this effort, it will fall short of the statute’s scope and disappoint those it was created to serve.

The 4^th ASP Session is occurring at a critical juncture for the court. The institution is in the process of shaping its strategy going forward into its second phase of operations.  This paper discusses in detail some of the elements we believe are crucial to a successful strategy for guiding the work of the International Criminal Court.  It also makes a number of recommendations to the ASP regarding the role it must play in assisting the ICC to realize that goal.