The entrance of the International Criminal Court (ICC).

© 2011 Reuters

(New York) – Member countries of the International Criminal Court (ICC) should ensure the court has the political backing and resources to fully and fairly provide justice for the worst international crimes, Human Rights Watch said today. The court’s 122 member countries are expected to take part in the annual session of the Assembly of States Parties, which begins on December 8, 2014, at the United Nations headquarters in New York.

The ICC is investigating cases in eight countries but has struggled with its existing caseload and calls to act in many other situations, Human Rights Watch said. The court in September opened a new investigation in the Central African Republic. In November, the UN General Assembly urged the Security Council to refer alleged crimes in North Korea’s prison camps to the ICC.

“The ICC is seen as the only hope for justice in more and more places,” said Elizabeth Evenson, senior international justice counsel at Human Rights Watch. “At the court’s annual meeting, member countries should pledge more help for investigations, witness protection, and arrests so that the court can meet these expectations.”

The election of the Assembly’s next president is among the meeting’s first items of business. Member countries are expected to elect Sidiki Kaba, Senegal’s justice minister, to the position.

In advance of the meeting, the government of Kenya requested a special discussion on the conduct of the court’s judges and its prosecutor, Fatou Bensouda. On December 5, the ICC prosecutor announced she was withdrawing charges against Uhuru Kenyatta, who is now Kenya’s president. The Office of the Prosecutor in 2010 brought crimes against humanity charges against Kenyatta, and William Ruto, now the country’s deputy president, in separate but related cases stemming from Kenya’s 2007-2008 electoral violence. The trial in the case against Ruto and a co-defendant is continuing in The Hague.

The Assembly should not debate pending judicial matters, Human Rights Watch said. But ICC member countries will need to be prepared to respond should Kenya raise its complaints during the annual meeting.

“The Kenyan government’s request to the Assembly is nothing more than its latest self-serving effort to undermine justice,” Evenson said. “The ICC is not beyond criticism, but its members should insist on respecting the court’s independence and pledge to support its work.”

The ICC judges on December 3, 2014, had turned down the prosecution’s request in the Kenyatta case for an indefinite adjournment pending Kenya’s cooperation in its investigations, holding that further delay in the case would not be in the interests of justice. The prosecutor was given one week to decide whether she had enough evidence to proceed to trial or to withdraw the charges. The judges found that the government had not fully complied with its obligations as an ICC state party, compromising the search for truth. But they decided against sending a formal finding of non-cooperation to the Assembly for enforcement, as permitted under the Rome Statute, the court’s founding document.

Member countries will have a number of other important matters before them at this annual session.

Six new judges out of 18 will be elected to the ICC bench from a pool of 17 candidates nominated by member countries. The strength of the judges’ decision-making and their management of in-court proceedings is key to the court’s ability to deliver justice. ICC member countries should ensure the election of the most highly qualified judges and elect candidates with experience in managing complex trials, Human Rights Watch said.

ICC member countries will also set the court’s annual budget. In spite of a clear need for the court to heighten its activities, some ICC member countries insist on holding down increases to the court’s budget. The government of Canada, in particular, has called for “zero growth.”

“The increasing gap between what the ICC needs to bring justice for international crimes and the resources available has already forced limits in the court’s investigations,” Evenson said. “Countries should insist on setting the court’s budget based on the need for justice, and not arbitrary caps.”

Kaba has pledged that as Assembly president he will give priority to strengthening cooperation with the court, as well as the court’s relationship with the African Union. He has also emphasized the importance of ensuring that national courts are better equipped to prosecute international crimes and expanding the number of ICC member countries.

In a memorandum to ICC member countries, Human Rights Watch emphasized the opportunities presented by the session for member countries to strengthen support for the court. They should agree to conduct a lessons-learned exercise next year regarding their collective efforts to prevent and respond to non-cooperation with the court. Without its own police force, the ICC is entirely dependent on governments to enforce its decisions. The Assembly should ensure it has the strongest possible measures in place to carry out its enforcement responsibilities, Human Rights Watch said.

The International Criminal Court
The ICC is the world’s first permanent court mandated to bring to justice people responsible for war crimes, crimes against humanity, and genocide when national courts are unable or unwilling to do so.

The Assembly of States Parties was created by the Rome Statute to provide management oversight of the administration of the court. It consists of representatives of each member country and is required to meet at least once a year.

The court’s jurisdiction over alleged international crimes may be triggered in one of three ways. ICC member countries or the United Nations Security Council may refer a situation, meaning a specific set of events, to the ICC prosecutor, or the ICC prosecutor’s office may seek on its own motion authorization by a pretrial chamber of ICC judges to open an investigation.

The ICC prosecutor has opened investigations in the Central African Republic, Côte d’Ivoire, the Darfur region of Sudan, Democratic Republic of Congo, Kenya, Libya, Mali, and northern Uganda.

Investigations in Central African Republic, Côte d’Ivoire, Democratic Republic of Congo, Mali, and northern Uganda were opened at the request of the government. The situations in Darfur and Libya were referred by the Security Council, while the ICC prosecutor made the request to the ICC judges to open the investigation in Kenya. It did so, however, only after national authorities failed to take steps to prosecute those most responsible for the deadly 2007-2008 post-election violence.

The prosecutor is also examining a number of other situations in countries around the world. These include Afghanistan, Colombia, Georgia, Guinea, Honduras, Iraq, Nigeria, and Ukraine. During 2014, the prosecutor decided full investigations were not warranted for alleged crimes by North Korea on South Korea’s territory and in connection with the Israeli interception of a flotilla of ships attempting to break the Gaza blockade in 2010.

At the December session, ICC member countries will have before them the outcome of the work of the Assembly’s rapporteur on arrest strategies. Arrest warrants remain outstanding against a number of individuals in ICC cases, presenting a barrier to justice. Member countries should take advantage of a planned plenary discussion on cooperation to show support for continued work on arrests in the coming year, Human Rights Watch said.

Since President Kenyatta took office in 2013, his administration has sought to undermine the court’s legitimacy and to derail its cases. In recent weeks Kenyan lawmakers have renewed their criticism of human rights activists speaking up for justice before the ICC. An anti-ICC climate fuelled by the government has impaired the willingness of witnesses to come forward in the court’s cases.

Kenya’s record on delivering justice is poor. Nearly seven years after the electoral violence, there has been no measure of justice for mass killings and rapes. The ICC stepped in only as a court of last resort, after Kenya’s authorities broke their promises to hold national trials.