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EU: Decision on ICC Aids Court

Emphasizes Importance of State Cooperation

(Brussels) - The adoption on March 21, 2011, of a revised Decision on the International Criminal Court (ICC) by the European Union's 27 foreign affairs ministers is an important step, Human Rights Watch said today. The move reaffirms EU support for the ICC and its commitment to ensure the court's independence and effective functioning.

The EU has very few legally binding decisions in matters of foreign policy. Its adoption of the decision on the ICC underscores the EU's strong commitment to combating impunity for the gravest crimes that shock the conscience of humanity, such as war crimes, crimes against humanity and genocide, Human Rights Watch said. The decision restates the EU's conviction that justice for these crimes is essential to preserve peace and international security, a shared objective of the United Nations, the EU and other regional organizations.

Reaffirmation of this conviction comes at an important time for the ICC, which, as its workload increases, faces a number of challenges to its mandate. Now it will be up to the EU to translate the decision into concrete measures to strengthen its support to the ICC, including ensuring that its new European Union diplomatic service, the European External Action Service (EEAS), is equipped with the necessary resources and capacity on the matter.

Reaffirming EU Support for the ICC's Difficult Mission

The EU has supported the ICC since its inception, adopting a Common Position and Action Plan on the ICC in 2003 and 2004, respectively. The EU pledged to review these instruments during the court's first review conference, in June 2010, in Kampala. Although these instruments set out EU support for the ICC, they were completed as ICC was just being established and had not yet started investigations. They needed review to reflect the progress made by the court and the EU's role in helping the ICC meet the real challenges it faces to carry out its mission. Today's decision, a new term under the Lisbon treaty, replaces the common position; the action plan is under review.

The decision is a signal that EU support continues unabated almost 10 years after the Rome Statute, which created the ICC, entered into force. This reaffirmation of support is particularly important now that the ICC has begun operations.

Since the adoption of the common position in 2003, the court has become operational and made significant advances in bringing victims justice. ICC judges have issued arrest warrants or summonses to appear for a total of 23 people for crimes committed in five situations - Uganda, the Democratic Republic of Congo, Darfur, the Central African Republic and Kenya. The UN Security Council recently decided to refer the situation in Libya to the ICC, and the prosecutor has opened an investigation in response. The ICC prosecutor is also monitoring other situations where ICC crimes may have been committed, including in Colombia, Afghanistan, Côte d'Ivoire, Georgia and Gaza.

Despite this important progress, the past few years have also clearly revealed the tremendous difficulties facing the ICC in carrying out its mandate. Making justice for grave international crimes a reality is fraught with practical and political hurdles.

Securing state cooperation for investigations and for arresting suspects remains a daunting challenge. Several ICC arrest warrants are outstanding. The targets, including the Lord's Resistance Army leaders and the Congolese general Bosco Ntaganda, continue their atrocities against civilians. ICC arrest warrants have also been contentious in the context of peace negotiations involving ICC targets, and peace and justice have sometimes been pitted against each other as competing objectives.

ICC action against high-level officials, such as President Omar al-Bashir of Sudan or Kenyan government ministers, has prompted attacks and backlash against the ICC by those who fear accountability. The African Union has called on its members - the majority of which are ICC states parties - not to cooperate with the ICC in the arrest and surrender of President al-Bashir. The ICC's limitations in the number of cases it can handle have also become clear. The ICC will not be able to address alone the immense accountability needs that often exist in post-conflict situations.

These challenges increase the need for ramped-up EU support for the ICC, and the decision reflects the EU's awareness of the difficulties and its commitment to addressing them. In the face of attacks aimed at undermining the court's credibility and impartiality, the decision recalls the EU's commitment to preserve and respect the court's independence.

It also stresses the importance of the "complementarity" principle enshrined in the ICC Statute, under which states parties have the primary responsibility to investigate and prosecute grave international crimes. It pledges EU and member states' support to contribute to complementarity in practice, by helping national courts prosecute grave international crimes, as appropriate. It also includes a strengthened article on cooperation with the court, underscoring the importance of state cooperation for the success of the ICC; calling on EU member states to consider concluding ad hoc cooperation agreements with the court to facilitate its work, and committing to monitoring closely cooperation received by the ICC.

The EU also undertakes in the decision to ensure coherence and consistency in all of its foreign and internal policies, with regard to its pledge to ensure justice for grave international crimes.

Given the challenges the court faces, vigorous diplomatic support for the ICC is needed in all relevant international forums and bilateral meetings. It is unfortunate that the decision does not specifically address this issue.

Translating Words into Action

The EU needs to follow the adoption of the new decision with courageous action on both its part and on the part of member states. The commitments expressed in the decision are repeatedly put to the test and can create tensions between competing political objectives. Insisting on justice for the victims of atrocities is not always easy, but it is required by the evolving norms of international law and is the right policy decision to help build the rule-of-law and respect for human rights. It is also a choice for the future, to send the signal to perpetrators of these crimes that they will no longer be able to evade accountability.

There are several actions the EU should take to translate the decision into concrete support for the ICC's mission. For example, the EU should continue to do its utmost to ensure that ICC decisions are respected and executed. This includes diplomatic and logistical or military measures to ensure that the LRA leaders and Ntaganda are apprehended. The continuing importance of justice in Darfur, where attacks on civilians persist, should not be overlooked in the post-South-Sudan referendum period, and Sudan should be pressed to cooperate with the ICC.

The EU should also continue to work with the African Union to strengthen the fight against impunity, given that both regional organizations are committed to this principle. The EU should encourage and help African states parties to respect their obligations under the Rome Statute with regard to arresting and surrendering al-Bashir. The EU is already doing important work on a tool kit to guide donor assistance for national prosecution of international crimes, which has particular relevance for many of the EU's African partners. This work should be encouraged and supported given that it holds out the promise of strengthening complementarity.

The EU also needs to press for accountability wherever grave international crimes are committed, without succumbing to possible double standards when powerful allies are concerned. Close attention by EU member states is needed to make sure this happens. An inconsistency on the part of the EU in insisting on accountability undercuts the credibility of the union's commitment to justice.

The revised action plan that will accompany the ICC decision is expected to identify concrete steps and measures that EU member states and the EU promise to take to carry out the decision's objectives. The current revision process of the plan provides EU coordination measures for more effective and consistent daily support to the ICC, an important opportunity to devise among other things. The role of the EU diplomatic service should be under particular scrutiny in this regard.

The EU Diplomatic Service's Role in Supporting the ICC

The new diplomatic service, together with EU member states, will be a key agent for carrying out the decision.

The new service should have the institutional structure and resources it needs both to carry out the decision and the EU's broader commitment to the fight against impunity. The institutional structure should also give proper visibility to this area as an underlying and consistent theme of EU foreign policy - one of the few foreign policy areas in which the EU and its member states are bound by a decision.

Human Rights Watch recommends assembling a small team of experts on the ICC and international justice in the Human Rights Directorate of the new service. Such a team is needed to ensure proper attention to developments related to the ICC and the fight against impunity in general, and EU engagement on these issues. The team could be entrusted with responsibility to cover the ICC, other international and mixed tribunals, and initiatives at the national level aimed at ensuring accountability for grave international crimes. At a minimum, one position is required to ensure proper coverage of the many aspects of the work of the ICC alone.

Such a team will be essential to ensure that issues related to the ICC and the fight against impunity will be mainstreamed in all EU's foreign policy initiatives. To complement its work, it would be helpful to identify ICC "focal points" in each EU delegation in countries where the ICC is conducting investigations or preliminary analysis. These focal points would be entrusted with following and making recommendations for EU action on relevant ICC developments, challenges the court is facing in these countries especially in relation to cooperation, and complementarity initiatives at the national level.

Human Rights Watch also recommends appointment by the high representative of the EU for foreign affairs and security policy of an EU special representative on international justice, based on the model of the US war crimes ambassador. In its human rights report adopted last December, the European Parliament made a similar recommendation. A special representative would give greater visibility to the EU's commitment to the fight against impunity and would facilitate timely high-level intervention in relevant matters.

Finally, it is essential that staff members of the new agency from headquarters and delegations have regular training about the ICC and recurrent themes arising from its work, including EU and third-state cooperation with the court, the interface between peace and justice, and the complementarity principle.

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