To Foreign Ministers of States Parties to the International Criminal Court

Dear Minister,

I am writing to follow up on Human Rights Watch's letter of February 22, 2010, in regard to the International Criminal Court's (ICC) Review Conference taking place in Kampala from May 31 to June 11, 2010. We believe the conference presents an exceptional opportunity for states parties to gain a deeper substantive grasp essential to more effective and focused policy decisions. These are necessary to advance the fight against impunity for the most serious crimes under the ICC's Rome Statute "system."

With the Resumed Session of the ICC Assembly of States Parties (ASP) completed, a solid foundation has been laid for Kampala. Preparations for the conference are fully underway. We acknowledge with appreciation the hard work of the ASP's facilitators on the review conference as well as the focal points appointed to prepare specific topics. At the same time, much remains to be done, and not much time remains until the end of May.

In addition to several proposed amendments, the review conference as part of its "stocktaking" exercise will focus attention on several key issues in international criminal justice. The stocktaking topics under consideration in Kampala mirror the core challenges in holding to account those responsible for the most serious international crimes. The way these issues are addressed will affect the practice of justice for these crimes in national courts and the ICC. Indeed, constructive discussions in Kampala can influence the investigation and prosecution of the most serious offenses for years to come.

We believe that through the preparations for the conference, as well as at Kampala itself, states parties can enrich their grasp of the challenges and take the collective practice of justice for Rome Statute crimes to a much higher level.

1. Stocktaking and Pledges

The four stocktaking topics are cooperation, complementarity, impact of the Rome Statute system on victims and affected communities, and peace and justice. Human Rights Watch will be issuing a comprehensive document on these topics in early May that we hope will assist your government in its preparation for Kampala.

We urge you to carry out broad, inter-ministerial consultations on these topics.

Such discussions will be important to refine your government's positions and to develop a strategy for making constructive interventions during stocktaking and related side events; such a strategy for interventions will be necessary given the limited time available in the formal agenda. Internal preparatory meetings should be considered as constituting a key part of the stocktaking exercise and can help to identify specific concerns and objectives in each of the four areas. If carried out by a sufficient number of states parties, these advance sessions will enable discussion in Kampala to be as rich and as productive as possible.

We also want to underscore the importance of your government identifying and developing specific pledges aimed at strengthening the Rome Statute system. As a manifestation of commitment to the ICC, pledges will crystallize engagement with the court and the fight against impunity. It is of great importance that pledges reflect achievable, concrete objectives and be time-specific. Pledges could include:

  • Appointing a national ICC focal point or constituting an intra-agency task force;
  • Implementing the Rome Statute at the domestic level;
  • Ratifying the Agreement on Privileges and Immunities;
  • Concluding agreements with the ICC on the enforcement of sentences, witness relocation and/or interim release of defendants;
  • Making annual contributions to the soon-to-be-established special fund for witness relocation;
  • Adopting national policies directed towards the mainstreaming of ICC support across ministries and within regional and international organizations, including with regard to support for the enforcement of court decisions;
  • Contributing to arrest operations and the execution of outstanding ICC warrants; and
  • Adopting or revising common positions in support of the ICC within regional organizations.

The Bureau has appointed Peru and The Netherlands to facilitate the pledging process, and an explanatory note on pledges, including sample pledges, is attached to the resolution adopted by the recent resumed session. We urge your government to make commitments prior to the May 14 deadline set by the pledge focal points. Where possible, making such pledges public-including through the ASP's review conference website-could encourage additional pledges, and would not detract in our view from the positive impression of support and commitment conveyed by the subsequent announcement of pledges during the Review Conference itself.  

2. The Crime of Aggression

The crime of aggression is of course a principal focus of the Kampala Conference. Delegates have worked over several years to define the crime and narrow differences on the outstanding political questions surrounding the jurisdictional filter. At the recently concluded ASP resumed session, the Chair of the Special Working Group on Aggression focused discussion on four selected options for the filter.

As a human rights organization whose focus is jus in bello, Human Rights Watch has not participated in the aggression discussions over the years. Nonetheless, we do have real concerns about the impact of a definition and jurisdictional filter on the court and perceptions of it.   

These concerns fall into two categories. We believe operationalizing the crime of aggression could diminish the court's legitimacy and standing. Aggression could link the ICC to highly politicized disputes that are often territorial, such as incursions and border disputes. We respect that many strong supporters of the ICC have favored inclusion of the crime of aggression, but as close observers of the court, we are concerned that at this early stage in the court's development, the crime of aggression could work to the detriment of deepening the court's practice with regard to the core crimes already within its reach.

Secondly, we are concerned that state actors, seeking to advance their national agendas with no regard to the court's mission, will cite the crime of aggression to invoke the court's authority where there is no jurisdiction. Due to the amendment's operational limitations, it will raise expectations for court action that will be neither satisfied nor understood. We do not believe this would be in the best interests of the institution.

At the same time, Human Rights Watch believes that a decision on this amendment should be taken on its merits and not be decided on the basis of its potential effect on the willingness of non-states parties to support or join the court's treaty. Broader ratification and accession or "universality" is a goal, not a constitutive principle of the Rome Statute.

Given the high stakes, we respectfully ask your government to give careful, strategic thought to this issue.

3. Preparing for Kampala: The Work Ahead

As discussed at the outset, preparation by states parties and other stakeholders over the next six weeks is key to maximizing the value of the review conference.

To realize the promise that Kampala offers, we believe intense work needs to be done in the relatively short period between now and the end of May. Doubtless, your government will be considering its positions on the various issues. In this context we make the following recommendations, some of which are also discussed above, in the hope of further assisting that process:

  • Convene focused, internal governmental discussion on these topics. Specifically, we hope your government, as some are doing, will schedule broad inter-ministerial consultations on the stocktaking topics to refine your substantive position and to bring these deepened positions to bear on discussions in Kampala.
  • Consider how to best use your government's statement during the high-level general debate, interventions during stocktaking, and attendance at side events to stress the strengthening of national courts and the ICC in the fight against impunity. Your attendance and the attendance of other senior officials from your government will be key to giving maximum weight to your statements and policy discussions in Kampala.
  • Make specific concrete and achievable pledges to assist the court's mission by the set deadline of May 14. Pledges are a concrete manifestation of commitment.
  • Engage actively in the discussion of a high-level declaration through the New York Working Group. Adoption of a high-level declaration at the conclusion of the general debate in Kampala would set a positive tone for further interventions in the stocktaking exercise and in subsequent negotiations on the crime of aggression.
  • Deploy government press officers to convey to the news media in your country the importance your government attaches to the Review Conference and its principal objectives in attending.
  • Welcome parliamentary hearings to bring debate on the stocktaking and amendment discussions into the public arena.
  • Engage in a meaningful dialogue with civil society in those countries where these stakeholders are similarly preparing for Kampala.

    

We stand ready to offer any substantive assistance we can to your government's preparations for Kampala.

Sincerely,

Richard Dicker

Director, International Justice Program