We, the undersigned African civil society organizations and international organizations with a presence in Africa, call on African governments to make the most of the upcoming review conference of the Rome Statute of the International Criminal Court (ICC), which will take place from May 31 to June 11, 2010 in Kampala, Uganda.
The review conference comes at a critical time in the development of the ICC. The court has made important progress since the Rome Statute entered into force in 2002 and is already providing a measure of justice for victims of genocide, war crimes, and crimes against humanity. But the court faces important challenges to implementing its mandate successfully. These include challenges in conducting court operations, such as obtaining adequate support to engage in outreach to affected populations. They also include external attacks on the institution, such as those advanced by some African leaders following the ICC arrest warrant for Sudanese President Omar al-Bashir in March 2009.
The review conference offers an exceptional occasion for African governments to help advance the global fight against impunity by restating their commitment to justice for the victims of grave crimes and offering views on the development of international criminal justice and the ICC. In addition to addressing several proposed amendments to the statute - including on the crime of aggression - the conference will have a general debate followed by two days of "stocktaking" of the Rome Statute system. The stocktaking exercise will provide a unique opportunity to provide input that can help to constructively shape accountability efforts domestically and internationally.
The review conference's location in Uganda only adds to its significance, as the event can help forge a stronger link between the ICC and Africa. The review conference will also be an important opportunity for victims and civil society to be heard on the ICC.
This Declaration provides observations and recommendations on the review conference, which is consistent with the African Union's call for attendance and effective participation at the conference (Decision on the Report of the Second Meeting of States Parties to the Rome Statute on the ICC, Assembly/AU/Dec.270(XIV), 2010). This Declaration focuses on high-level attendance and a high-level declaration, pledging, and the stocktaking exercise at the conference. The Declaration does not discuss proposed amendments under consideration.
I. High-level Attendance and Declaration
High-level attendance by ministers and other senior officials at the review conference - especially during the general debate and the stocktaking exercise - and adoption of a high-level declaration on the conference are two important ways governments can send a strong message of support for accountability for grave crimes in violation of international law. We have heard that a number of African states will have ministerial level participation at the conference, which is very positive and should be encouraged among all African ICC states parties. With regard to a high-level declaration, a draft that underlines core aims of the Rome Statute and commitments of states parties to the court has been prepared and should be available in Kampala for consideration. The adoption of the draft declaration would be a tangible outcome of the conference and a renewed expression of support for the fight against impunity at the highest political level.
Pledges are a way in which states may commit to undertake specific actions to advance support for the ICC, such as by pledging to adopt ICC implementing legislation by a specific date. Pledges - which can be made by individual states, groups of states, and regional and other groups - are a major, significant initiative around the review conference and an important way to help ensure the conference has impact beyond discussions in Kampala. Pledges should comprise tangible objectives to be attained within a specific time period and should be communicated to the Netherlands and Peru, as focal points on pledges, ideally by May 14. Pledges may be kept confidential until the review conference, although making them public in advance could help encourage pledges by other governments.
For African governments that are not yet parties to the court, a priority pledge is ratification of the Rome Statute by a particular date. As the ICC is a court of last resort, becoming a party to it is an essential way to demonstrate commitment to the fight against impunity. For African governments that are states parties, a priority pledge should be adoption of domestic implementing legislation for the Rome Statute by a particular date. To our knowledge, only five states in Africa - Burkina Faso, Central African Republic, Kenya, Senegal and South Africa - have enacted comprehensive ICC implementing legislation. Such legislation makes genocide, war crimes, and crimes against humanity crimes under domestic law and provides for cooperation with the ICC. (While Uganda's parliament has also adopted such legislation, Uganda's president had not signed the bill into law as of this writing.)
Another important area for pledges is to work toward the timely establishment of an ICC Liaison Office in Addis Ababa. This office would be an important way to create an avenue for essential discourse and access to the ICC by the African Union and to strengthen cooperation and engagement between the two entities. Work toward conclusion of a memorandum of understanding (MOU) between the AU and the ICC would also be a valuable pledge. MOUs already exist between the court and the United Nations, as well as the European Union, and are under consideration by other regional groups. The conclusion of a memorandum of understanding would be an important way to facilitate cooperation between the AU and ICC and a logical step in line with article 4 of the AU's Constitutive Act, which rejects impunity.
There are many other areas that merit consideration as possible pledges. These include: ratifying the Agreement on Privileges and Immunities by a specific date; building ICC support across ministries, and at regional and international organizations; promoting ratification or the adoption of implementing legislation in other countries; appointing a national ICC focal point or intra-agency task force; contributing to arrest operations and executing warrants; concluding agreements on sentence enforcement, witness relocation and interim release; and actively participating in sessions of the ICC Assembly of States Parties.
III. The Stocktaking Exercise
The stocktaking exercise will focus on four issues that reflect key challenges in bringing to account perpetrators of serious crimes in violation of international law: the impact of justice on victims and affected communities, state cooperation, complementarity, and peace and justice. Substantive and constructive discussions during stocktaking thus have the potential to enhance future accountability efforts. However, thoughtful preparation and participation will be essential: the exercise can only be as valuable as the contributions made to it.
It is crucial that views from Africa be heard in these discussions and we encourage African states to make interventions on relevant stocktaking topics. We also encourage African states to consider resolutions on topics where they are put forward.
As your government prepares for the stocktaking exercise, we would like to draw attention to several issues related to each of the topics that will be considered:
Impact of justice on victims and affected communities
The work of the ICC is at its core about victims who have suffered grave crimes. The ICC has unique elements to help realize victims' rights and expectations for justice, such as victim participation in proceedings and reparations. Hundreds of victims are already participating in situations and cases before the ICC and the victims' trust fund has undertaken projects to assist victims. With the court's first cases focused in Africa, African victims have been the primary beneficiaries to date of the ICC's efforts to promote justice for victims. At the same time, lack of execution of arrest warrants, lengthy proceedings, and limited cases are only a few of the areas where victims have expressed disappointment and frustration with the ICC. A key challenge is ensuring victims have adequate access to information about the court.
The stocktaking session provides an important opportunity for African governments to reflect on the central role of victims in the accountability process and key issues related to victims, such as: the significant advances included in the Rome Statute of the ICC in terms of promoting victims' rights; areas where more work is needed by the ICC, such as strengthening outreach and communications; and observations on best promoting victims' rights in domestic prosecutions for serious crimes. In addition, the draft resolution on victims merits attention as it includes important elements, such as on the need to deliver effective justice to victims and the priority of victims' rights and interests.
The ICC relies on cooperation to fulfill its mandate as the court lacks any police force. Cooperation includes two main components: judicial assistance and logistical support - such as facilitating investigations and witness relocation, and putting in place domestic frameworks that enable effective response to cooperation requests; and strong political support - including mainstreaming support for the court in regional and international organizations. One of the most significant areas of cooperation that relates to both of these components is apprehension of suspects. The ICC cannot bring justice to victims if suspects are not brought to the dock. Notably, the ICC has outstanding arrest warrants in three of the five situations where it is conducting investigations. Some of these warrants have been pending for several years and suspects continue to be involved in committing atrocities against civilians.
The stocktaking session on cooperation provides a valuable opportunity to discuss experiences thus far in addressing cooperation requests or providing political and diplomatic support to the court. Pledges and expressions of support to cooperate with the court and identify ways to strengthen domestic, regional, and international cooperation with the court - including with regard to arrest operations - would also be important. Finally, the session is a good occasion to consider publicly supporting the establishment of a working group by the Assembly of States Parties on cooperation to ensure continued focus on this important issue by states parties.
One of the most important ways to expand the fight against impunity is through complementarity. This principle concerns the role of national courts in assuming their primary responsibility in prosecuting serious crimes. It also touches on efforts to strengthen national courts to make sure they are able and willing to assume their responsibility to prosecute serious crimes. Too many national systems in Africa currently lack the capacity or the will to address serious crimes. The stronger the ability and willingness of national courts to prosecute these crimes, the more the ICC can truly act as a court of last resort.
The stocktaking session on complementarily is a significant opportunity for African governments to discuss how to ensure their national courts take up their responsibilities in investigating and adjudicating Rome Statute crimes. This includes overcoming lack of political will to prosecute, and promoting targeted assistance to enable fair, effective domestic prosecutions, including by enabling proper witness protection, and support for victims. Finally, a resolution on complementarity has been prepared, which discusses the key elements of the principle and merits due consideration.
Peace and Justice
As the ICC conducts its work in different situations where conflict is ongoing, concerns that efforts to achieve peace will be undercut by efforts to ensure justice have consistently arisen. Few deny that peace and justice must go hand in hand in the long-term, but the analysis often becomes more difficult during particular periods of conflict or peace negotiations.
The stocktaking session on peace and justice is an important moment for reflection on identifying ways to pursue peace and justice simultaneously, and to recognize several core principles that are fundamental to state parties' commitment to the ICC in the context of debates on peace and justice. These include that perpetrators of serious crimes should not go unpunished; that the ICC should function as an independent institution; and that accountability for grave crimes is a key way to contribute to sustainable peace, including by promoting the possibility to deter future crimes.
These principles are central to the Rome Statute, and have been consistently supported by African governments since before the ICC came into existence. This is reflected by the Southern African Development Community (SADC) Principles, adopted in 1997, and Dakar Declaration in support of an international criminal court, adopted in 1998.
Organizations supporting this Declaration:
1. Abubu-Dukire (Association for the Rights of the Missing and the Victims of Mass Killings), Bujumbura, Burundi
2. Access to Justice, Lagos, Nigeria
3. Action Against Impunity for Human Rights (ACIDH), Lubumbashi, Democratic Republic of Congo (DRC)
4. Action of Christian's Activists of Human Rights in Shabunda (ACADHOSHA), South Kivu, DRC
5. Action of the Christians for the Abolition of Torture (ACAT - Burundi), Bujumbura, Burundi
6. Actions Feminines pour la défense des droits de l'homme (AFDDHO), Mahagi, DRC
7. Actions pour la Protection des Droits de l'Homme (APDH), Abidjan, Cote d'Ivoire
8. Advocates of Public International Law-Uganda (APILU), Kampala, Uganda
9. Africa Legal Aid, Ghana
10. African Assembly for the Defense of Human Rights (RADDHO), Dakar, Senegal
11. African Assembly for the Defense of Human Rights (RADDHO), Guinea
12. African Association for the Defence of Human Rights (ASADHO), South Kivu, DRC
13. African Centre for Justice and Peace Studies, Sudan
14. African Development and Peace Initiative (ADPI), Adjumani, Uganda
15. Amnesty International, Dakar, Senegal
16. Arab Foundation for Civil Society and Human Rights Support, Cairo, Egypt
17. Article 19, Nairobi, Kenya
18. Association for Human Rights and the Penitentiary World (ADHUC), Brazzaville, Republic of the Congo
19. Association Justice, Rabat, Morocco
20. Association of the Christians for the Abolition of Torture, Senegal
21. Association of the Shipowners on Lake Kivu (ASSALAK), South Kivu, DRC
22. Association of Uganda Women Lawyers (FIDA-U), Kampala, Uganda
23. Association of the Women Lawyers, Bangui, Central African Republic
24. Association of Victims of Crimes and Political Repression in Chad (AVCRP), Chad
25. Association pour la Promotion et la Défense de la Dignité des Victimes, DRC
26. Avocats sans Frontières, Uganda
27. Barefoot Women Solar Engineers Association of Sierra Leone, Freetown, Sierra Leone
28. Beninese Coalition for the International Criminal Court, Benin
29. Burkinabe Coalition for the International Criminal Court (CB/CPI), Ouagadougou, Burkina Faso
30. Burkinabe Movement for Human and Peoples' Rights, Ouagadougou, Burkina Faso
31. Burundi Coalition for the International Criminal Court (ICC-CB), Bujumbura, Burundi
32. Cairo Institute for Human Rights Studies (CIHRS), Cairo, Egypt
33. Cameroon Coalition for the International Criminal Court, Douala, Cameroon
34. Campaign for Human Rights in Burundi (CADRHO-BURUNDI), Burundi
35. Capacity Builders, Freetown, Sierra Leone
36. Center for Democracy and Elections (CENDE), Inc., Monrovia, Liberia
37. Center for Democratic Empowerment, Monrovia, Liberia
38. Center for Human Rights and Rehabilitation (CHRR), Lilongwe, Malawi
39. Center for Justice Studies and Resolution 1325 (CJR/1325), Kinshasa, DRC
40. Center for Media Studies and Peace Building (CEMESP-Liberia), Monrovia, Liberia
41. Center For Reparation and Rehabilitation (CRR), Gulu, Uganda
42. Center for Trauma Counseling and Conflict Resolution (CETCCOR), Monrovia, Liberia
43. Central African Republic Coalition for the ICC, Central African Republic
44. Centre for Citizens with Disabilities (CCD), Ikeja, Lagos, Nigeria
45. Children and Women's Empowerment Society, Freetown, Sierra Leone
46. Children Education Society (CHESO), Dar es Salaam, Tanzania
47. The City of Human Rights and Peace (CIDHOP), South Kivu, DRC
48. Citizens Coalition for Constitutional Culture (4Cs), Nairobi, Kenya
49. Civil Resource Development and Documentation Center (CIRDDOC), Enugu, Nigeria
50. Civil Society of Congo (SOCICO/NK), North Kivu, DRC
51. Club of the Friends of Law in Congo, DRC
52. Coalition for Justice and Accountability, Freetown, Sierra Leone
53. Congolese Foundation for the Promotion of Peace and Human Rights (FOCDP), Kisangani, DRC
54. Congolese Initiative for Justice and Peace (ICJP), Bukavu, DRC
55. Congolese Observatory of Human Rights (OCDH), Brazzaville, Congo
56. Conscience International, Freetown, Sierra Leone
57. Consortium for the Empowerment and Development of Marginalized Communities (CEDMAC), Nairobi, Kenya
58. Darfur Artists Union (SAD), Darfur, Sudan
59. Darfur Bar Association (DBA), Khartoum, Sudan
60. Darfur Democratic Forum (DDF), Darfur, Sudan
61. Darfur Displaced People and Refugees Union, Cairo, Egypt
62. Defence for Children International (DRC), Freetown, Sierra Leone
63. DITSHWANELO - The Botswana Centre for Human Rights, Gaborone, Botswana
64. East and Horn of Africa Human Rights Defenders Project (EHAHRDP), Kampala, Uganda
65. Fédération des Jeunes pour la Paix Mondiale, DRC
66. Formerly Abused Development Program-Uganda (FADEPU), Uganda
67. Foundation for Human Rights and Democracy (FOHRD), Monrovia, Liberia
68. Foundation for Human Rights Initiative, Kampala, Uganda
69. Foundation for International Dignity (FIND), Monrovia, Liberia
70. Good Hope Foundation, Uganda
71. Grassroots Initiative, Freetown, Sierra Leone
72. Group Agora for the Education on Rights of the Child and Peace (GRA-REDEP), Dakar, Senegal
73. Groupe Equitas, DRC
74. Heirs of Justice, Bukavu, DRC
75. Human Rights and Advocacy Network for Democracy (HAND), Khartoum, Sudan
76. Human Rights Concern, Eritrea
77. Human Rights Network-Uganda (HURINet), Kampala, Uganda
78. Human Rights Watch, Johannesburg, South Africa
79. Human Rights, Justice and Peace Foundation, Aba, Nigeria
80. Institute for Democratic Initiative (IDI), Liberia
81. International Center for Policy and Conflict, Nairobi, Kenya
82. International Crime in Africa Programme (ICAP), Institute for Security Studies, Pretoria, South Africa
83. International Refugee Rights Initiative (IRRI), Kampala, Uganda
84. International Society for Civil Liberties and the Rule of Law (Inter-Society), Anambra state, Nigeria
85. Isis Women's International Cross Cultural Exchange (Isis-WICCE), Kampala, Uganda
86. Ivorian Coalition for the International Criminal Court (ICC-CI), Abidjan, Ivory Coast
87. Justice Plus, DRC
88. Kenya Human Rights Commission (KHRC), Nairobi, Kenya
89. Kolan Kissy Rural Development Agency, Freetown, Sierra Leone
90. League for Human Rights, Jos, Nigeria
91. League for Peace and Human Rights in the DRC (LIPADHO), DRC
92. Legal Defence and Assistance Project (LEDAP), Lagos, Nigeria
93. Légalité, DRC
94. Liberia Democratic Institute, Monrovia, Liberia
95. Liberia Media Center, Monrovia, Liberia
96. Life Concern, Kampala, Uganda
97. Lira NGO Forum, Lira, Uganda
98. LOTUS, Kisangani, DRC
99. The Marginalized People's Newspaper, Cairo, Egypt
100. Moyo War Victims Association, Moyo, Uganda
101. Nagaad Umbrella for Somaliland Women NGOs, Hargeisa, Somaliland
102. National Coalition for the International Criminal Court in DRC (CN-CPI/RDC), Kinshasa, DRC
103. National Organization of Human Rights, Senegal
104. Network Movement for Democracy and Human Rights, Freetown, Sierra Leone
105. Network of the NGOs in Congo, North-Kivu Province (REPRODHOC/NK), DRC
106. Nigerian Coalition for the International Criminal Court (NCICC), Abuja, Nigeria
107. Northern Uganda Transitional Justice Working Group, Uganda
108. One Family People, Freetown, Sierra Leone
109. Parents without Partners and Victims Forum, Freetown, Sierra Leone
110. Peace Pen Communications, Nairobi, Kenya
111. Peace Youth Association (PYA), Darfur, Sudan
112. People's Educational Association, Freetown, Sierra Leone
113. Prison Watch, Freetown, Sierra Leone
114. Reach the Children, Kampala, Uganda
115. René Cassin Institute (IRECA), South Kivu, DRC
116. Rights and Rice Foundation, Monrovia, Liberia
117. Samotalis Coalition of Human Right Organization, Hargeisa, Somaliland
118. Social Action for Peace and Development (ASPD), Goma, DRC
119. Social Reform Centre (SOREC), Nairobi, Kenya
120. SocialJustice Advocacy Initiative (SJAI), Lagos Nigeria
121. Socio-Economic Rights and Accountability Project (SERAP), Lagos, Nigeria
122. Solidarity for Social Advancement and Peace (SOPROP), Goma, DRC
123. Solidarity of the Women for Peace and Integral Development (SOFEPADI), North Kivu and Orientale, DRC
124. Somali Human Rights Defenders Network (SOHRIDEN), Mogadishu, Somalia
125. Somaliland Impartial Human Rights Organizations Network (SOHIRA-Net), Somaliland
126. South African Coalition for the International Criminal Court (SACICC) Durban, South Africa
127. Southern Africa Development Community (SADC) Lawyers Association, Gaborone, Botswana
128. Southern Africa Litigation Centre, Johannesburg, South Africa
129. Sudan Organisation Against Torture (SOAT), Sudan
130. Synergy of Congolese NGOs for the victims (SYCOV), DRC
131. Synergy of Women for the Victims of Sexual Violence (SFVS), North Kivu, DRC
132. The Africa Freedom of Information Centre (AFIC), Kampala, Uganda
133. The Center for Research on Environment, Democracy and Human Rights (CREDDHO), Goma, DRC
134. The Kenyan Section of the International Commission of Jurists, Nairobi, Kenya
135. The League of Human Rights in the Great Lakes region, Rwanda
136. Uganda Coalition for the International Criminal Court (UCICC), Kampala, Uganda
137. Ugandan Victims Foundation, Lira, Uganda
138. Unit of Service and Assistance, Harare, Zimbabwe
139. West African Bar Association, Lagos, Nigeria
140. Women and Law in Southern Africa Research and Educational Trust (WLSA), Zambia
141. Women's Advocates, Sierra Leone
142. Women's Forum, Sierra Leone
143. Women's HIV/AIDS Initiative, Uganda
144. Youth Empowerment Organization, Freetown, Sierra Leone
145. Zimbabwe Lawyers for Human Rights, Harare, Zimbabwe
Updated June 15, 2010 and June 24, 2010.