III. The Role of States Parties in International Justice: Cooperation, Support and Strengthening National ProsecutionsAt this juncture, with three active investigations and the issuance of the first arrest warrants, the need for robust support by States Parties and ASP engagement is vital. This is for two reasons: first, to secure cooperation from states, various agencies of the United Nations and other inter-governmental organizations; and second, to fulfill the ASP’s breadth of responsibilities to the court. There can be no question that active support by States Parties will shape the ICC's future and determine whether it ultimately reaches the goals for which it was established. In addition, beyond the framework of the ASP, there is another important way in which States Parties can promote justice for serious crimes: ICC investigations create an opening to strengthen national capacity to prosecute the most serious crimes and States Parties should approach this opportunity strategically. A. Ensuring Effective Cooperation with the ICCCooperation by States Cooperation by states is crucial to the success of the ICC. Because it has no police force and no enforcement mechanisms, it is unable to perform its most basic functions without state cooperation. In this regard, we note the obligation of States Parties under Article 93 of the Rome Statute to cooperate with the court in its functions. This includes collection of evidence, arrest of indictees, and witness protection. We welcome the first specific cooperation agreements concluded between the ICC and States Parties. However, due to the nature of its mandate, the ICC may face resistance in the states in which it is conducting investigations. Pressure by States Parties will be critical to ensuring necessary cooperation. The importance of state pressure is well-illustrated by the recent wave of surrenders to the ICTY. Security Council resolutions, without more, were not enough to secure state cooperation. If it were not for the pressure of European Union and the United States on the countries of the former Yugoslavia, the ICTY would not have had nearly the success it has had in the last year in obtaining the voluntary surrender of nearly twenty indictees. Undoubtedly, the ICC will require similar involvement from States Parties in order to effectuate arrests and receive cooperation from governments that might otherwise be hostile. United Nations and Inter-governmental Organization Cooperation Ensuring cooperation by various United Nations and other inter-governmental bodies is crucial. For example, in some situations peacekeeping missions have an important role to play in assisting the ICC with witness protection, evidence gathering and arrests. U.N., African Union and European Union agencies in the field can provide invaluable logistical assistance in gaining access to hard-to-reach areas as well as security in dangerous situations. It is therefore important that the ICC receive the support and assistance it needs from the United Nations and other inter-governmental organizations. States Parties have a key role in bringing this cooperation about. It is important to note that over the past thirteen months, the ICC’s relationship with the United Nations has been substantially strengthened in part due to the role of States Parties. The conclusion and implementation of the Relationship Agreement between the United Nations and the ICC in October 2004 was an important achievement. As a result, President Kirsch made his first report to the U.N. General Assembly on November 8, 2005. This provided the occasion for positive and informative interventions by many States Parties at the General Assembly. The Security Council referral of Darfur to the ICC on March 31, 2005, was another very significant accomplishment. It should enhance direct communication between the ICC and the Security Council by requiring periodic reports from the ICC to the Security Council. Further bi-lateral agreements with specific United Nations agencies will be needed and efforts should be made to conclude these agreements swiftly. Strong support from ASP members at the UN is necessary to ensure that states opposing the court are not able to derail ICC efforts and block cooperation agreements. A solid show of support from the states that support the ICC is necessary to make certain that the ICC is not crippled by the efforts of a determined minority. The Key Role of the United Nations Liaison Office An important issue to be resolved during this ASP session is the establishment of an ICC U.N. Liaison Office in New York. In making its decision, States Parties will consider an Option Paper by the Bureau together with the favorable recommendations contained in the Report by the Committee on Budget and Finance.34 Human Rights Watch believes it is important to establish an ICC New York U.N. Liaison Office for a number of reasons. First, there are operational advantages to having a New York office. For example, there will be moments when ICC personnel will be at risk and need urgent assistance from U.N. peacekeeping forces. Having a Liaison Office in New York to facilitate communications with the Department of Peacekeeping Operations is important to security for court personnel. Second, although the ICC is seated in The Hague, it is essential to root the court in the United Nations system because the two institutional mandates are so complementary. As discussed above, cooperation from the United Nations is essential to the ICC's success. Having an office in New York will assist in managing relations at U.N. headquarters and help ensure that the ICC receives the consideration it should have in U.N. activities. For example, when developing the mandate of a peacekeeping operation, even if there is no ICC investigation at the time, it could be useful to anticipate the need for cooperation with the ICC. Keeping track of these issues and maintaining focus at the United Nations on ICC issues would be an important part of this office's work in addition to facilitating visits from ICC staff based in The Hague. The value of developing direct contacts in various agencies of the United Nations is another important intangible benefit. Now that the court has entered its operational phase, a close working relationship with the United Nations is increasingly important. It is essential that the ASP take the decision to establish a liaison office during this ASP session. Human Rights Watch therefore recommends that States Parties:
Human Rights Watch further recommends that the ASP:
B. SupportHuman Rights Watch views the long-term success of the ICC as contingent on the willingness of the ASP to act as an engaged and supportive body. The Assembly has an important role to play in ensuring that the court is efficient and operates as intended: complementing national courts and making a meaningful contribution to the cause of justice. As a new and unique institution facing enormous challenges, the court needs assistance in developing “best practices.” It will benefit from close engagement by the ASP particularly in this early operational phase. Where there are shortcomings in practice, States Parties need to point them out. Thus, aside from being essential to securing cooperation, the active involvement of the ASP with the court is necessary to help the ICC become the most effective institution possible. The stakes are too high for States Parties to do otherwise. Human Rights Watch believes the ASP can better serve its court if it makes several changes to the annual ASP meeting. In this regard, we welcome the “lessons learned” exercise conducted by the Bureau after the third ASP session and we urge the ASP to implement some of the recommendations that were identified including: General Segment: There should be a short general segment at the beginning of the meeting. This is necessary to bring life to important substantive issues that otherwise may be discussed only technically or not at all. A general segment will also provide meaning to later discussions. For example, in deciding different budgetary issues, it would be helpful to understand the context in which the request for funds is brought. As the General Assembly Session of November 8, 2005 demonstrated, these segments can be very informative and rich. Longer Session: It is crucial for the kind of substantive dialogue between the court and the ASP envisioned in Resolution 8 of 2004 that the duration of the meeting be extended.35 Six days is not sufficient to consider all of the important issues that require ASP attention. For example, the complicated issue of the crime of aggression was originally slated for a full day, but had to be cut in the preliminary schedule to a half-day because of time constraints. A shorter meeting may also make it difficult to bring issues to resolution, as was seen last year with the Code of Conduct and the Trust Fund for Victims Regulations. The limited time frame makes it more difficult to have meaningful dialogue on the strategic or substantive issues court officials might like to raise. Finally, the approach of the 2009 Review Conference will make a lengthier session in 2006 all the more important to consider substantive issues that may arise as proposed amendments. Working Groups: The experience of the past year has demonstrated the important value of working groups. When a working group is inclusive and actively consults the members of the ICC, experts, and NGOs when developing an approach to an issue, it can be very useful. The establishment of a working group is an efficient way for States Parties to address substantive issues and may make the general ASP meetings more productive. To assist in their operations, it is important that the working groups receive support from the ASP Secretariat. Active Bureau: The ASP needs its Bureau to be active in the exercise of its responsibilities. A Bureau that takes a hands-on approach and is appropriately involved in issues related to effective operations of the ICC could be very beneficial. An active Bureau requires commitment and time on the part of Bureau members. Those elected must be willing to devote the necessary time to do the work. The Bureau should make efforts to communicate its work to States Parties. The Bureau should also receive adequate support from the ASP Secretariat. Alternate Meeting Locations: The ASP should alternate its annual meetings between New York and The Hague. States parties with fewer resources have indicated that costs make it difficult to attend the meeting in The Hague. They have expressed the desire to have meetings in New York where they are represented at the United Nations.36 Fuller participation in the ASP meetings would greatly benefit the ICC. In short, Human Rights Watch recommends that the ASP:
C. Strengthening National ProsecutionsIn addition to supporting the work of the court directly, States Parties can strengthen prosecutions for serious crimes in other ways. Human Rights Watch believes States Parties should see the ICC’s efforts as a start, but not an end, to ensuring that justice is achieved for atrocities. The ICC opens the door to enhancing national justice systems and provides states a unique opportunity to assist domestic courts to promote the prosecution of war crimes, crimes against humanity and genocide. States need to approach complementarity in a strategic and focused manner. In particular, states must tailor their own aid programs to rebuild national justice systems to ensure that states are meeting their responsibilities to prosecute serious crimes. Human Rights Watch urges States Parties to approach the issue of complementarity in a strategic manner and to tailor any efforts to assist with the rebuilding of national justice systems in such a way as to enhance domestic capacity to prosecute war crimes, genocide and crimes against humanity. [34] Option Paper by the Bureau on the Establishment of a New York Liaison Office, 24 August 2005, ICC-ASP/4/6; Report of the Committee on Budget and Finance on the Work of its Fifth Session, ICC-ASP/4/27, para. 104. [35] Intensifying the Dialogue between the Assembly of States Parties and the International Criminal Court, 10 September 2004, Resolution ICC-ASP/3/Res.8. [36] See 8 November 2005 statements of Mr. Thomas B. Amolo, Ministry of Foreign Affairs of the Republic of Kenya and H.E. Mr. Aminu Bashir Wali, Permanent Representative of Nigeria to the United Nations in response to Report of the International Criminal Court to the 60th Session of the United Nations General Assembly, both of which express a desire to have meetings alternate between The Hague and New York in order to facilitate wider participation of developing countries.
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