To Foreign Ministers of States Parties to the International Criminal Court

Your Excellency:

As you know, the upcoming review conference of the Rome Statute of the International Criminal Court (ICC) will take place in Kampala, Uganda from May 31-June 11, 2010. The review conference is mandated to consider a limited number of amendments to the treaty.[1] A large part of the review conference will be devoted to negotiations surrounding the crime of aggression.

The Assembly of States Parties also decided to make "stocktaking" of the Rome Statute system an integral part of the review conference agenda.[2] The formal inclusion of sessions aimed at developing policies and practices for the ICC and international criminal justice through the lens of the four topics identified for discussion - 1) the impact of justice on victims and affected communities, 2) state cooperation, 3) complementarity, and 4) peace and justice - underscores the review conference's potential as a watershed moment. To put it simply, constructive discussions of these topics by the ICC's 110 states parties and non-states parties alike will shape the investigation and prosecution of the most serious crimes at the international and national levels in the years to come.

The review conference's location in Uganda adds to its significance, as the event can help forge an even stronger link between the ICC and Africa in the fight against impunity. This is all the more important given the hostility towards the court in Africa, as expressed by a handful of non-states parties through the African Union in the wake of the ICC's arrest warrant against Sudanese President Omar al-Bashir. The controversy surrounding the case against President Bashir also demonstrates the pivotal role of accountability on the international stage and its implications for other important political and diplomatic objectives.

These factors sharply illustrate why engagement by the highest levels of your government in the review conference process is so important. Human Rights Watch believes such engagement should be realized in two phases: first, by ensuring prominent capital-based officials are involved in advance preparations, and second, by sending representatives of the highest level, including heads of state and ministerial-level representatives, to Kampala. This is discussed in more detail below.

I.     Preparations for Kampala: opportunities for engagement by capital

  • a) Shaping the substance of stocktaking

High-level engagement by officials in capitals from all ICC states parties should begin long before Kampala. Indeed, it is during the preparations phase that important policy decisions - many of which can have long-term implications for your government - will be made. Advance preparations regarding the contours of the stocktaking exercise, for instance, have already commenced.

Country focal points have already been identified for each of the topics mentioned above, with Chile and Finland leading preparations on the impact of justice on victims; Ireland and Costa Rica responsible for state cooperation; Denmark and South Africa handling complementarity; and Argentina, the Democratic Republic of Congo and Switzerland organizing discussions around peace and justice. To date, the country focal points (as selected by the ASP Bureau) have made significant progress in identifying, among other things, proposed modalities, substance, and outcomes for their respective stocktaking sessions in Kampala.

The resumed session of the ASP that will take place at United Nations Headquarters in New York on March 22-25, 2010 offers a benchmark to assess this progress and develop a strategy for outcomes to be tabled in Kampala. Human Rights Watch urges the appropriate officials in the foreign affairs and justice ministries of your government to provide meaningful input for each of the stocktaking topics as deliberations around them ripen.

Capital engagement should also ensure that the outcomes identified for each topic are both appropriate and meaningful, keeping in mind that certain topics, including cooperation and complementarity, more easily lend themselves to concrete outcomes. To this end, we urge your government to identify and develop in advance specific pledges or commitments to further the goals of these topics in practical terms. Sample pledges, which could be announced during the review conference, may include: the appointment of a national ICC focal point or constitution of an intra-agency ICC task force for those states which have not yet done so; the conclusion of agreements with the ICC on enforcement of sentences, witness relocation, or interim release; and the domestic implementation of the Rome Statute.

  • b) Developing a strategy for interventions at the review conference

Human Rights Watch also encourages your government to consider how to use the review conference in Kampala as a platform to make constructive interventions to strengthen the effectiveness of national courts and the ICC in the fight against impunity. This includes during the high-level general debate, the stocktaking exercise, discussions on amendments, and negotiations on the crime of aggression. Using these events strategically can make a significant contribution to bolstering political support for the court that your government helped to create. Such political support is every bit as essential for the ICC's success as the technical discussions that will follow in the second-half of the review conference.

  • c) Negotiating a ministerial declaration

In addition to preparation for events that are reflected in the formal agenda, we urge ICC states parties to strongly consider negotiating a ministerial-level declaration, the results of which could be adopted at the conclusion of the general debate in Kampala. Such a declaration could be aimed at expressing support for the ICC and its mandate in broad terms (referencing but not focusing on the stocktaking topics). Similarly, the requisite advance negotiations of the text merit the engagement of high-level capital officials in review conference preparations. Further, adopting the ministerial declaration early on in the review conference carries the added advantage of setting a positive tone for further interventions in the stocktaking exercise and in subsequent negotiations on amendments and the crime of aggression. The successful negotiation and adoption of a ministerial declaration would also guarantee a positive outcome of the review conference from the outset.

II.   High-level attendance in Kampala is crucial

The scope and substance of the discussions in Kampala make attendance at the general debate and throughout the stocktaking exercise by senior level officials of the ICC's 110 states parties, including heads of state/government and ministers, essential. The political stature of such officials would help cement policy decisions made in the preparations phase and lend prominence to their formal adoption in Kampala. More broadly, high-level attendance would be instrumental in sending the message, including to perpetrators and would-be perpetrators, that the international community prioritizes justice for the victims of the worst crimes known to humankind.

We hope these suggestions are helpful. Please do not hesitate to contact me if you have any questions.

Sincerely,

Richard Dicker
Director, International Justice Program
Human Rights Watch

 


 [1] As agreed at the eighth session of the Assembly of States Parties (ASP) in November 2009. See ASP, "Review Conference," ICC-ASP/8/Res.6, November 26, 2009, http://www.icc-cpi.int/iccdocs/asp_docs/Resolutions/ICC-ASP-8-Res.6-ENG.pdf (accessed February 19, 2010).

[2] Ibid., paras. 5, 6, Annex IV.