The International Criminal Courts success is directly related to the will of states parties and intergovernmental organizations to support it. Without its own police force to facilitate investigations, to locate witnesses, and to apprehend suspects, the ICC must rely on the cooperation of states parties in order to fulfill its mandate. The Rome Statute delineates an express obligation of states parties to cooperate with the court,741 and ICC officials should provide details to states parties about the kind of cooperation required in specific circumstances. However, it is crucial that states parties view their responsibility to cooperate with the court as substantially more far reaching than responding to targeted demands for assistance. This court simply cannot succeed without active engagement by states parties in facilitating achievement of the ICCs objectives.
The kind of cooperation and support that the court requires fall into two main areas. First, the court needs judicial cooperation and logistical support, such as support relating to apprehending suspects and to witness relocation, mentioned above. It also involves states parties establishing a domestic framework to facilitate timely response to requests from the court for cooperation. Second, states parties must provide strong political support for the court. This includes mainstreaming support for the court in diplomatic relations, particularly in relation to the situation countries under ICC investigation. This section discusses these two areas, with a focus on the ICCs needs, measures by states parties to effectively respond to them, and ways in which efforts can be enhanced. The section turns first, however, to the ICCs Assembly of States Parties, given its unique potential for ensuring adequate backing and assistance for the court.
The Assembly of States Parties is a body that was created by the Rome Statute to provide management oversight of the administration of the court. The ASP is composed of representatives of each state party and is required to meet at least once a year but can meet more often as required.742 Among numerous functions, including administrative responsibilities such as approval of the courts yearly budget, the ASP is mandated to consider questions of a state partys refusal to comply with a request by the court for cooperation.743 Human Rights Watch believes that the ASP can make critical contributions to ensure that the ICC receives sufficient cooperation and support, but only if it exercises its mandate in an active and engaged way.
Such contributions include providing scrutiny and feedback on ICC operations, although only in a manner that respects the ICCs judicial independence, and enabling strategic dialogue between states parties and ICC staff on cooperation needs. Scrutiny of ICC operations is invaluable to the courts positive evolution especially in these early stages of its work. Along with strategic dialogue, such scrutiny can enhance understanding of ICC activity among states parties, thereby strengthening appreciation of the courts cooperation, support, and funding needs. The ASP can also advance thinking and strategies among states parties to ensure cooperation and support, including through exchange of information on best practices and lessons learned. Finally, the ASP can provide a forum where states parties can express strong political support for the ICC and, as referenced above, take up instances of non-cooperation.
Human Rights Watch has stressed previously the importance of a muscular role for the ASP to fulfill these tasks.744 As discussed below, the ASP has taken important steps toward this end by strengthening its procedures and by undertaking targeted initiatives regarding cooperation. For the ASP to play its role as a proper locus of active support and assistance for the ICC, these developments should be consolidated and furthered.
Over the past four years, the ASP has taken a variety of measures to strengthen its functioning both during and outside of its annual sessions. For example, the ASP Bureau has appointed two permanent working groups, one in The Hague and one in New York. These working groups meet throughout the year and facilitate substantive discussions on ICC issues as they arise in advance of the formal ASP sessions.745
The ASP also has moved to longer annual sessions, which allows more in-depth discussion and attention to broader issues in addition to technical items that may require decisions. As such, there is more time to sequence meetings over the course of the session, thus minimizing scheduling and other conflicts (such as the availability of translation services). This enhances the ability of small delegations to participate effectively. More recently, the ASP sessions have been enriched by several informal side meetings. These meetings provide opportunities to discuss a number of important issues that may not be on the regular agenda, for example, outreach and communications, victims participation, and cooperation. Such meetings should be a regular feature of ASP sessions.
A particularly significant addition to ASP sessions is the general debate at its opening. The debate provides an excellent platform for states parties to express their support for the court and to raise matters of overarching importance regarding the ICC. The general debate at the ASPs sixth session (2007) provided a glimpse of the type of robust ASP that can effectively assist the court. The debate was characterized by statements of strong support and near universal emphasis on the importance of cooperation. More than one-third of the statements also expressly discussed the need for Sudan to arrest and surrender ICC suspects.746 The debate helped make cooperation the theme of the sixth session, which in turn has helped create a sense of momentum and has laid the basis for future action to improve cooperation.
General debates can draw contributions from high-level officials and thus further reinforce political support for the ICC and its mandate. In this regard, interventions by the United Nations secretary-general, the Spanish first deputy prime minister, and the South African Minister of Justice at the ASPs sixth session were positive.747
A central challenge with regard to cooperation and support is converting broad proclamations into policy and practice.
In the past two years, the ASP has undertaken initiatives to operationalize broad expressions of support. During its fifth session, the ASP appointed facilitators in New York and The Hague who led consultations and prepared a report on cooperation.748 The report, which was endorsed by the ASP Bureau, provides invaluable guidance by identifying a range of steps that states parties should take to improve cooperation with and support for the ICC. We discuss many of the Bureaus recommendations below.
At its sixth session, the ASP also appointed a focal point on cooperation.749 Based in The Hague, the focal point, the ambassador of Belgium to the international organizations in the Netherlands, can play a positive role in fostering cooperation and support by helping to bridge the gap between the courts needs and states parties knowledge of and capacity to respond to them. Human Rights Watch believes that this can be done in several ways. First, the focal point can enhance communication and coordination between states parties and the ICC through sustained and informal interaction with diplomats and court officials. Second, the focal point can stimulate needed debate and exchange among states parties on lessons learned in cooperating and supporting the court and, in turn, can use such information to help popularize best practices. Third, the focal point can help generate positive responses to particular cooperation needs in a timely way by bringing together groups of states that may be best placed to provide the needed assistance. Such efforts would be beneficial for all states parties, but especially those that have less experience cooperating with tribunals or that are concerned about cooperating given limited resources. We understand that the focal point has or intends to pursue most of these avenues, which we strongly welcome.
In order to be effective, the focal point will also need to be active and creative. This will be assisted through regular contact with court officials and diplomats on ICC needs and challenges and through identifying and focusing on a discrete set of initiatives where the needs are particularly great and where innovation among states parties may be needed. In this regard, we welcome the focal points expressed commitment to such communication and to working on issues such as witness relocation agreements. One important initiative in this area, which is discussed below and appears to be on the focal points radar screen, involves efforts to facilitate witness relocation to states that lack resources and expertise in this area.750
As discussed later in this section, the UN is an unparalleled intergovernmental organization when it comes to achieving ICC cooperation and support. Since the focal point on cooperation is based in The Hague, we urge the ASP Bureau to also consider appointing a New York-based focal point or sub-focal point on cooperation to maximize the opportunities to promote the ICCs objectives at UN headquarters.
Judicial cooperation and logistical support encompass a range of critical assistance, which includes providing evidence, serving documents, executing searches, protecting witnesses, freezing assets, surrendering suspects, and imprisoning convicted persons. It is important to bear in mind that judicial cooperation includes assistance to the defense as well as the prosecution.
Key to ensuring judicial cooperation and logistical support is having the proper legal basis and practical arrangements in place to respond in a timely and effective manner. Of course, political will to put the proper legal foundation in place and to provide relevant cooperation and support is of the essence.
A variety of means available to states parties to enhance capacity to provide judicial cooperation and logistical support are discussed below. Human Rights Watch strongly encourages states parties to consider these and to promptly undertake relevant measures where they are not yet in place.
To give effect to the general obligation of states parties to cooperate with the court, article 88 of the Rome Statute provides that states parties are required to ensure that there are procedures available under their national law for all of the forms of cooperation under the statute.751 Legislation to implement the Rome Statute in national law, often referred to as implementing legislation, is vital to meeting this requirement: it lays a clear domestic basis for cooperation.
The absence of implementing legislation does not remove states parties obligations to cooperate with the court, but makes such cooperation dependent on ad hoc arrangements. This is vastly more complicated and burdensome for the ICC. Unfortunately, many states parties have yet to pass implementing legislation. These states parties should take all necessary steps to adopt implementing legislation. This may include engaging in technical consultations with states parties that have similar legal systems (and, therefore, similar approaches to addressing legal issues that may arise), both bilaterally and within regional organizations to facilitate this process.
Putting into place effective domestic institutional arrangements is another important way for states parties to facilitate effective cooperation with the court.As the ASP Bureaus report indicates, having adequate procedures in place before an actual request is received fosters a timely and satisfactory response.752 For states parties that have not previously cooperated with an international criminal tribunal, advance thinking and planning is all the more important. Many states parties have already established institutional arrangements to facilitate cooperation and support. Some of these arrangements, which vary in complexity and scope, are detailed below.
Of course, the ICC must provide states parties with adequate information on the cooperation and support that it needs. This is especially important for states with less experience cooperating with tribunals and with less understanding of what is required in practice for cooperation.753 We note that in March 2007, the ICC prepared a report for the benefit of states parties detailing some of its requests.754
A basic arrangement that many states have established is the appointment of a national focal point on ICC cooperation.755 This focal point receives cooperation requests from the court and channels them to the relevant body within the national authorities. In some countries, the national focal point is responsible for following developments at the ICC and for participating in ASP sessions.756 In addition, the focal points help their respective national governments define policies regarding specific developments related to the work of the court.
Although not yet common,757 Human Rights Watch believes that these national focal points should play an additional role: proactively working to build support for court issues within and across government institutions.758 This would increase understanding within governments about the ICC, which in turn will promote more effective cooperation. Efforts toward this end could involve convening discussions and meetings on cooperation and sharing updates with relevant ministries.
Working through a focal point may at times slow response time to cooperation requests. For example, it could seem more efficient for ICC staff to contact the local police in Paris to interview a Congolese citizen residing there who may be a witness in the ICCs investigation in the DRC. However, Human Rights Watch was told that there is a major value to working through a central authority: it ensures that the response reflects a government position as opposed to that of an enthusiastic individual who may rotate posts very soon.759
For a number of states parties, the national focal point is someone appointed from their ministry of foreign affairs, although justice ministries tend to be involved in the practical work of responding to cooperation requests. For other states parties, the Hague-based embassy legal adviser serves this function, working with contact points within ministries. In order to ensure cooperation issues receive the attention that they require, it may be necessary to appoint focal points with senior standing within a government.
Some states parties have also created more detailed internal coordinating arrangements. This tends to be the pattern among states with greater resources and previous experience cooperating with international tribunals. One such arrangement is an interministerial task force.760 An interministerial task forcewhich can meet regularly or on an as-needed basiscan foster greater consultation and can enable information exchange among relevant ministries on cooperation. It can also heighten the ICCs profile within a government.
One of the more developed units is the Belgian Task Force (BTF). The BTF provides a forum in which consideration and discussion of cooperation with the ICC and other international tribunals occurs.761 The BTF includes representatives from a wide range of governmental departments, including the ministries of foreign affairs, justice, defense, and interior, and meets two or three times a year.762 While the BTF does not deal with specific cooperation requests or projects, it provides a platform where the relevant Belgian authorities consider and discuss cooperation with the ICC and other international tribunals and helps to keep information about cooperation requests and projects flowing.763 Notably, through the BTF, each department designates a contact point. This can facilitate response to specific cooperation requests involving these departments as they arise. In addition, while a national focal point unit in the Ministry of Justice helps to move specific requests through the national machinery, a sub-group of the BTF consisting of the most relevant actors can be pulled together to assist as needed on particular projects, such as negotiations on a witness relocation agreement.
As such, the approach reflected by the BTF is valuable in that it helps ensure that officials who should be involved in ICC cooperation are at the table. It also raises awareness about international justice and judicial cooperation matters.
For situation countries, cooperation involves a wider variety of requirements than for other states parties. Unfortunately, national officials often have not fully understood the ICCs needs and, thus, have not been able to respond adequately to the courts requests. Identifying appropriate national officials to respond to ICC requests has been particularly challenging. This is likely because implementing legislation, which details cooperation issues, has not been passed in any ICC situation country to date.764
In executing the varied and sometimes mundane functions to facilitate ICC operations in situation countries, such as opening bank accounts and registering vehicles, court staff often deal with government personnel who are not familiar with the ICC.765 In this context, while the ministry of foreign affairs may be the entry point for unlocking the support that the court needs, interagency task forces can be instrumental in facilitating cooperation by promoting consultation among relevant actors and by establishing institutional memory regarding cooperation, thus minimizing roadblocks.766
Court officials have also found that in situation countries, advance consultation on possible requests can help ensure prompt, accurate responses. This has been done through conclusion of standard operating procedures (SoPs) documents with national authorities. For example, an SoP could enumerate steps that are likely to be needed prior to and following the issuance of arrest warrants by the ICC. Other valuable measures taken by court officials in situation countries include preparation of lessons learned documents on practices such as setting up bank accounts and establishing premises. Court officials have also conducted trainings on procedures in the SoPs.767
There are some areassuch as transport of suspects, witness relocation, provisional release of defendants, and enforcement of sentencesfor which agreements prior to specific requests for cooperation are especially crucial.768 These requests may require quick turnaround and may arise several times. It is simply too onerous and inefficient to reinvent the wheel every time.
Framework agreements between the ICC and states parties are one important means through which these needs can be properly addressed. Framework agreements provide a broad outline of duties and responsibilities for states parties and provide a basis on which states can react quickly to court requests.769 Notably, the agreements do not predetermine a specific positive or negative reaction by the state party. However, if a decision is made to move ahead, a foundation is already in place.
While we understand some framework agreements have been concluded, the number is highly insufficient.770 Admittedly, assistance such as witness relocation and imprisonment of convicted individuals involve financial commitments and long-term assistance. At the same time, these are fundamental to the courts ability to function. Moreover, as the number of cases before the court increases, the demands in these areas will likely grow.771 The greater the number of states parties that sign framework agreements, the more the burdens can be properly shared and managed.
We urge all states parties to consider concluding agreements regarding witness relocation. Of course, there are advantages to relocating a witness to a geographically proximate and culturally similar environment. However, states that fit those requirements may lack the necessary capacity and expertise in this area.772 As discussed in the ASP Bureau report on cooperation, and mentioned above, it would be useful to explore ways in which states parties with relevant experience and resources can assist states parties that are willing but lacking in capacity.773 This might involve the creation of a special fund that the court would administer to facilitate witness relocation.
Other challenges can arise in the interface between the needs of witness relocation and enforcement of sentences, on the one hand, and the requirements of domestic law, on the other. This is especially pronounced in countries with a federal system, where social benefits may flow from a particular provincial or state entity.774 The process of negotiating a framework agreement in such states can be a valuable way to bring the relevant actors together to resolve challenges to providing assistance. This also avoids such issues becoming repeated roadblocks.
An overarching obstacle is a belief among some state officials that there is little or no popular domestic support for assisting the court with practical tasks that involve costs. Some states parties, as a result, are reluctant to tie themselves down with a framework agreement.775 Where popular support may appear to be lacking, we see a vital role for officials to develop strategies to change public opinion. Moreover, such assistance should be presented and understood as an integral part of the fight against impunity and consistent with ICC membership. Otherwise, the court will not be able to operate.
Intergovernmental organizations are another crucial source of judicial cooperation and logistical support. To date, the provision of such assistance has been most prominently by the United Nations.776 The UN is a natural partner for the ICC due to its mandate to promote peace and respect for human rights, its presence in all ICC situation countries to date, its developed capacity for operating in locations that are remote and that pose many logistical challenges (as is the case for existing ICC situations), and because the work of so many UN organs and agencies intersects with ICC-related issues.777
The UNs cooperation is also facilitated by a relationship agreement that the ICC has concluded with the organization.778 It would be valuable for the ICC to have such agreements with all major regional organizations as well. In this regard the agreement on cooperation and assistance between the ICC and the European Union (EU) is welcome.779 With the ICCs current investigations in Africa, a relationship agreement with the African Union (AU) is especially important. Despite the development of a draft agreement and statements by African states parties in support, there has been opposition among AU member states to concluding the agreement. We urge African states parties to raise a possible agreement at the AU and to advance the conclusion of such an agreement, consistent with providing diplomatic support to enable cooperation as discussed below.
A relationship agreement between the ICC and the Organization of American States would also be of particular significance, especially given that Colombia is one of the country situations under analysis by the prosecutor.780
(Greater integration of the court into the UN system and regional organizations is discussed below.)
Given the challenges that the ICC faces, the need for vigorous diplomatic and political support by states parties cannot be overstated. As the ASP Bureaus report on cooperation points out, [c]onsistent, strong and long-term political support of states parties is of vital importance for the Court to be able to carry out its functions.781 Diplomatic and political support can be key to achieving particular goals, such as arrest and surrender, and also to creating a climate that is generally conducive to facilitating the courts work.
Active diplomatic and political support is all the more important given that the ICC often operates in situations of instability or ongoing conflict. Investigation and trials of crimes committed in these situations are particularly significant since a credible threat of prosecution may help stem further abuses. At the same time, in these settings the courts work exists alongside other important objectives, such as peace negotiations and peacekeeping operations.
Human Rights Watch recognizes that states parties manage a range of interests vis-à-vis ICC situation countries. But silence, ambivalence, or muted support regarding the ICCs mandate in these situations sends an untenable signal about the court and about justice more generally. States parties should give clear, consistent backing to the ICC in these circumstances and also should stress the role of justice in cementing a durable peace and the need for an outcome that include both objectives. Moreover, as discussed below, there are numerous other important opportunities that we urge states parties to seize to provide the court with needed diplomatic and political support.
There can be no trials without arrests. There has been some cooperation on arrest: the Congolese government turned over two suspects in its custody (they were being held in relation to different crimes) and arrested a third, who was promptly turned over to the ICC. More recently, the Belgian authorities arrested former Congolese vice-president Jean-Pierre Bemba on the basis of an ICC arrest warrant for crimes allegedly committed in the Central African Republic and transferred him to The Hague. Unfortunately, however, the situation that the court currently faces with respect to arrest and surrender is troubling. To date, most ICC arrest warrants have not been executed and several of the arrest warrants have been outstanding for years.782
Compelling arrest and surrender by a recalcitrant government poses the hard case of cooperation. By pitting the writ of the court against the prerogatives of national sovereignty, arrest is the Achilles heel of enforcement that highlights the broader limitations of a still fledgling system of international justice.
Despite the difficulties, experience from the 15 years of international criminal tribunal practice shows that efforts by states to wield their combined political, diplomatic, and economic clout can be decisive for arrest and surrender. At the International Criminal Tribunal for the former Yugoslavia, for example, Serbias surrender of 20 indicted persons in 2005 and two other accused in 2007 was directly related to diplomatic pressure around negotiations over its accession to the European Union.783 In 2006 increasing diplomatic pressure by states, including the United Kingdom and the United States, helped lead to surrender of former Liberian president Charles Taylor for trial at the Special Court for Sierra Leone. Despite his indictment on war crimes and crimes against humanity, Taylor had been enjoying safe haven in Nigeria.
These examples underscore the value of principled and active use of diplomacy. To this end, states parties should regularly raise arrest and surrender in bilateral contacts with non-cooperative states, in interactions with influential third-party states, in meetings at regional and international intergovernmental organizations, and at ASP sessions.784 States parties should also be creative in identifying and utilizing relevant political and economic leverage as appropriate, such as sanctions. Such efforts may not lead to immediate action but are crucial to stigmatization and, ultimately, surrender.
It is essential that the ICC become firmly integrated in the United Nations system. As the worlds foremost intergovernmental organization, the UN is the principal multilateral platform for states parties to channel diplomatic and political support for the ICC. The UNs involvement in so many conflict and post-conflict situations, including those before the ICC, also means that the UN is in many instances uniquely placed to play a constructive or negative role in relation to the ICCs mandate.
Despite an overall supportive relationship between the UN and the ICC, there has and continues to be some resistance in the UN Secretariat to the ICC. This is most pronounced, not surprisingly, where advancing the ICCs mandate is perceived as a potential obstacle to progress in other UN activities, such as peacekeeping and peace negotiations. This only underscores the need for states parties, as noted below, to convey the importance that they attach to the ICC in interactions with high-level UN officials.
The ASP Bureau report highlights the crucial role of the United Nations and enumerates a number of valuable ways to properly root the ICC into the UN machinery. These measures, which should be actively implemented by states parties, are as follows. First, states parties should ensure that the ICC is adequately taken into account in Security Council action, including in relation to peacekeeping mandates, missions, and sanctions. Second, the ICC should also be referenced in General Assembly and other resolutions where appropriate. Third, states parties should remind UN member states of their duty to cooperate and should request that states fulfill their obligations, in particular with respect to arrest and surrender. Fourth, when considering candidacies for membership in UN organs, states parties should consider willingness and capacity to ratify the Rome Statute and to cooperate with the court. Fifth, regional groupings should keep the courts needs in mind as appropriate. Sixth, states parties should raise awareness and support for the ICC in appropriate UN fora, including in bilateral meetings with UN officials and in debates in the various UN committees.785
In addition, we urge UN officials and staff to give the ICC essential political support in both private and public contexts, such as in discussions with relevant states and armed groups involved in peace negotiations and in meetings with regional organizations. Two main messages are particularly important: there must be justice where serious crimes have been committed, and justice is vital to establishing a sustainable peace. Indeed, such efforts are consistent with UN policy, practice, and principles.786
ICC officials also need to do their part in keeping the UN aware and engaged in the ICCs work. Important practice in this regard, as discussed below, includes the ICC presidents annual address to the General Assembly, the prosecutors briefings to the Security Council on Darfur, and the establishment of the ICC-UN liaison office.787
Unfortunately, despite the importance of active backing of the ICC by states parties at the UN, states parties have missed significant opportunities to give such backing, most notably with regard to obstruction by Sudan. Sudans blatant refusal to execute ICC arrest warrants issued in early May 2007 poses a frontal challenge to the court.788 Silence from UN bodies for many months in response, such as during a Security Council mission to Sudan in June 2007,789 not only failed to advance surrender, it emboldened the Sudanese leadership to further flout its obligations vis-à-vis suspects. The UN officials ongoing silence following the mission exacerbated this situation.790
Recognizing that the ICC warrants had slipped too far off the agenda without hoped-for concessions by Khartoum on deployment of a peacekeeping force, states parties began to more actively seize opportunities at the UN in the autumn of 2007.791 By the time that the prosecutor made his twice yearly briefing to the Security Council on Darfur in December 2007, the shift was marked. Statements by state party council members were very strong and expressly called for Sudan to cooperate. At the briefing, states parties not on the council also provided a stark example of how to make their combined weight felt within multilateral fora. They packed the Security Council chamber in a show of support.792 Their overflowing presence sent a powerful message and left Sudans UN ambassador furious.
As a result of the activity around the prosecutors December council report, the political price for obstruction of justice increased for Sudan.793 However, the reality is that justice could be downplayed for the purposes of political expediency. States parties should, thus, maintain and increase pressure over time and should draw some lessons learned in making the court a fixture in future council considerations. To its credit, on its mission to Sudan this June, the Council raised Khartoums repeated obstruction of justice as one of several pressing items. Also in June, the Security Council adopted a Presidential Statement calling on Sudan to cooperate with the court. These developments are welcome, but the Security Council should continue to step up its response in the face of continued defiance of resolution 1593.794
The activity that has accompanied briefings by ICC officials at UN headquarters underscores the benefit of regular visits by high-level court officials to foster diplomatic and political support. The visits are, moreover, important opportunities to engage states parties representatives in strategic dialogue, especially in advance of significant events such as Security Council briefings.795
While there are numerous UN fora that states parties can utilize to provide political and diplomatic support to the ICC, several annual opportunities merit special note. These are the General Debate of the General Assembly, in which the ICC was positively featured in 2007;796 the ICC presidents briefing to the General Assembly; and negotiations over the ICC resolution by the General Assemblys sixth committee.
Diplomatic and political support to the ICC from regional organizations is also very important. These organizations are influential, and their explicit backing provides added leverage for the court in executing its orders and in endorsing its mandate. This backing also brings geographic support for the court, which may have implications for the practical assistance provided to the ICC on the ground. As indicated in the ASP Bureau report, states parties should promote, where possible, the mainstreaming of court-related issues within such organizations.797 Given the courts activities in Africa and its close monitoring of the situation in Colombia, increased political and diplomatic support is particularly needed from the African Union and Organization of American States.
The ASP report proposes important specific measures that states parties should undertake vis-à-vis regional organizations, which Human Rights Watch fully endorses. These include: initiate and support joint statements and resolutions by regional organizations promoting the court and its general and situational activities, promote cooperation agreements between regional organizations and the ICC, support the establishment of working groups within regional organizations on the ICC, promote meetings within regional organizations to raise awareness and to exchange information on cooperation, and address the ICC at high political levels within the relevant organizations.798
The European Union offers a positive model regarding the kind of cooperation that is required from regional organizations. The EU has adopted a common position on the ICC that is intended to help guide the 27 member states in their action on the ICC both at the EU and in other fora.799 Consistent with the position, the EU has undertaken numerous initiatives in support of the court. These include carrying out demarches, raising the ICC in political dialogue and in summits with third states, and including a clause of recognition and support to the ICC in cooperation agreements with non-EU states. The European Parliament has also been a staunch supporter of the court since its inception. In addition, the EU is endeavoring to mainstream support to the ICC in its various activities. Examples include the mandates of the EU special representatives to Sudan and to the Great Lakes to liaise with the court on their respective areas of competence. The EU has further issued numerous foreign minister conclusions in which the ICC is properly featured.800
Much more is needed, however. The EU has successfully mobilized around the first challenge faced by the ICC: striving for universal ratification. In that regard, the EU and individual EU member states have traveled around the world acting as ambassadors of the values enshrined in the Rome Statute. This has greatly contributed to countries deciding to join. The EU also provided a strong defense in the face of an ideological campaign by the United States against the court. At the same time, as mentioned earlier, the court is now facing what is probably the most crucial of challenges: arrest of suspects and respect for its mandate and mission in the context of its country situations of operation. In this regard, it has been harder for the EU to speak with one voice and to consistently take all measures at its disposal to support the court.
The EU must continue efforts to mainstream the ICC in these and other activities, for example by focusing development aid on assisting national judiciaries in situation countries or by encouraging EU countries to exercise universal jurisdiction over ICC crimes. Indeed, this would be consistent with the complementarity principle in the Rome Statute. Such efforts are also required from other regional organizations.
741 Rome Statute article 86 provides that States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of the crimes within the jurisdiction of the Court.
742 Observer states are also invited to attend or participate in certain aspects of the work of the ASP. Rome Statute, art. 112(1).
743 Rome Statute, arts. 112(2)(f), 87(7).
744 See, for example, Human Rights Watch, Memorandum for the Fifth Session of the Assembly of States Parties to the ICC, November 2006, http://www.hrw.org/backgrounder/ij/asp1106/asp1106web.pdf.
745 See ASP, Proceedings, in Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, Fourth session, The Hague, November 28 - December 3, 2005, ICC-ASP/4/32, Part I, http://www.icc-cpi.int/library/asp/Part_I_-_Proceedings.pdf (accessed May 13, 2008), para. 21. As part of their functioning, these groups meet regularly; interact with the ICC, nongovernmental organizations and relevant experts; produce reports to facilitate the ASPs work; and assist in preparation for the ASP session. They also appoint focal points and sub-groups to work on specific issues, such as the courts strategic plan, budget, and permanent premises.
746 Statements are available at http://www.icc-cpi.int/asp/documentation/doc_6thsession/6th_GeneralDebate.html (accessed May 13, 2008).
747 See Ban Ki-Moon, UN Secretary-General, Remarks at the General Debate of the Sixth Assembly of States Parties to the Rome Statute of the International Criminal Court, New York, December 3, 2007, http://www.icc-cpi.int/library/asp/statement_SG_6thasp_3_Dec_2007.pdf (accessed May 13, 2008); H.E. Mrs. María Teresa Fernández de la Vega, First Deputy Prime Minister of the Government of Spain, Intervention at the General Debate of the Sixth Assembly of States Parties to the Rome Statute of the International Criminal Court, New York, December 3, 2007, http://www.icc-cpi.int/library/asp/Spain_gd_statement_sp_6thasp.pdf (accessed May 13, 2008); H.E. Mrs. B.S. Mabandla, Minister for Justice and Constitutional Development of the Government of South Africa, Intervention at the General Debate of the Sixth Assembly of States Parties to the Rome Statute of the International Criminal Court, New York, December 3, 2007, http://www.icc-cpi.int/library/asp/Statement_GD_South_Africa_EN_6ASP.pdf (accessed June 27, 2008).
748 In New York, the facilitator was the Dutch legal advisor, while in The Hague, the Danish ambassador served in this role.
749 ASP, Strengthening the International Criminal Court and the Assembly of States Parties, Resolution ICC-ASP/6/Res.2, http://www.icc-cpi.int/library/asp/ICC-ASP-6-20_Vol.I_Part_III_English.pdf (accessed June 10, 2008), para. 40.
750 Human Rights Watch meeting with state party diplomat, The Hague, March 11, 2008.
751 Rome Statute, art. 88. See also Human Rights Watch, Making the International Criminal Court Work: A Handbook for Implementing the Rome Statute, vol. 13, no. 4(G), September 2001, http://www.hrw.org/campaigns/icc/docs/handbook_e.pdf.
752 ASP, Report of the Bureau on Cooperation, ICC-ASP/6/21, October 19, 2007, http://www.icc-cpi.int/library/asp/ICC-ASP-6-21_English.pdf (accessed April 25, 2008), para. 4 (Report of the Bureau on Cooperation).
753 Human Rights Watch interview with ICC state party diplomat, The Hague, March 17, 2008. We recommend above that the president, through the Coordination Council, can help to provide this information to states parties. See Part I.B, above.
754 ICC, Cooperation Report to the Bureau of the Assembly of States Parties, March 2007 (copy on file with Human Rights Watch).
755 Human Rights Watch separate interviews with several ICC state party diplomats, The Hague, March 17, 2008.
756 For example, focal points from European Union (EU) states are part of a group of national focal points who participate in regularly convened meetings on the ICC through the Council of the European Union Working Group on International Law (COJUR).
757 Human Rights Watch discussion with state party diplomats, New York, December 2007.
758 See ASP, Report of the Bureau on Cooperation, para. 3.
759 Human Rights Watch interview with Belgian diplomat, Brussels, February 7, 2008.
760 Human Rights Watch separate interviews with Belgian diplomat, Brussels, February 7, several ICC state party diplomats, The Hague, March 17, 2008 and French diplomat, Paris, March 18, 2008.
761 Human Rights Watch interview with Belgian diplomat, Brussels, February 7, 2008.
762 These include: the prime ministers cabinet; the ministries of foreign affairs, justice, defense, and interior; the federal prosecutor, police, and correctional units; and the military and civilian intelligence services. Ibid.
763 In fact, specific requests go to the international judicial cooperation service within the Justice Ministry consistent with Belgiums ICC implementing law, which appointed the ministry as the contact point for cooperation requests. Ibid.
764 Notably, draft legislation is under consideration in Uganda and the Democratic Republic of Congo.
765 Human Rights Watch interview with ICC staff, New York, December 11, 2007.
766 For example, a national taskforce could bring together representatives from the ministries necessary to execute arrest warrants, including justice, foreign affairs, transport, corrections, and internal affairs.
767 Human Rights Watch interview with ICC staff, New York, December 11, 2007.
768 See ASP, Report of the Bureau on Cooperation, para. 21.
769 The agreements contain information such as the identity of the national officials who must be contacted; what information should be provided by the court; how much time the state has to reply to a request; what happens if the agreed timeframe is not met; who will bear which costs; and who will give final approval. Human Rights Watch interview with ICC staff, New York, December 11, 2007.
770 While information on transport agreements is not available, the court to date has been able to conclude only seven witness relocation agreements and two enforcement of sentences agreements. ASP, Report on the Activities of the Court, ICC-ASP/6/18, October 18, 2007, http://www.icc-cpi.int/library/asp/ICC-ASP-6-18_English.pdf (accessed June 6, 2008), para. 50; Agreement Between the International Criminal Court and the Federal Government of Austria on the Enforcement of Sentences of the International Criminal Court, International Criminal Court, ICC-Pres/00-01-05, http://www.icc-cpi.int/library/about/officialjournal/ICC-Pres-00-01-05-ENG.pdf (accessed June 6, 2008).; Agreement Between the Government of the United Kingdom of Great Britain and Northern Ireland and the International Criminal Court on the Enforcement of Sentences Imposed by the International Criminal Court, International Criminal Court, ICC-Pres/04-01-07, http://www.icc-cpi.int/library/about/officialjournal/ICC-Pres-04-01-07-ENG.pdf (accessed May 13, 2008).
771 According to the ASP Bureaus report on cooperation, [i]n 2001 there was one application for protection. That number increased to 36 in 2006. The Court has in the first half of 2007 alone received 25 applications [E]ach application for the protection of a witness concerns 5-20 individuals/dependants. ASP, Report of the Bureau on Cooperation, para. 46, http://www.icc-cpi.int/library/asp/ICC-ASP-6-21_English.pdf (accessed May 7, 2008).
772 Nevertheless, the investment required is likely less burdensome than some states appear to perceive it to be: according to court officials some states parties have thought witness relocation would involve hundreds of refugees. Human Rights Watch interview with ICC staff, New York, December 11, 2007. This is not the case. Witness relocation, especially outside the region where witnesses live, is generally only pursued as a last resort since moving a witness to a country with an unfamiliar language and culture is not desirable for him or her.
773 ASP, Report of the Bureau on Cooperation, para. 21.
774 Human Rights Watch interview with ICC state party diplomat, The Hague, March 17, 2008.
776 As noted in the ICCs report on its operations in 2006, the support of the United Nations was particularly beneficial in facilitating the Courts operations in the field. Positive cooperation continued between the Court and the Office for the Coordination of Humanitarian Affairs and the United Nations Mission in the Democratic Republic of the Congo The Court established strong relationships with and received support in the field from several United Nations funds, programmes or other bodies, including the United Nations Development Programme, the Office of the United Nations High Commissioner for Refugees and the United Nations Childrens Fund. ASP, Report of the International Criminal Court, A/62/314, August 31, 2007, http://www.icc-cpi.int/library/organs/presidency/ICC_Report_to_UN_2006_2007_English.pdf, (accessed April 25, 2008), para. 44.
777 This includes the Security Council, Department of Peacekeeping Operations, High Commissioner for Human Rights, and High Commissioner for Refugees.
778 Negotiated Relationship Agreement between the International Criminal Court and the United Nations, adopted October 4, 2004, ICC-ASP/3/Res.1, http://www.icc-cpi.int/library/asp/ICC-ASP-3-Res1_English.pdf (accessed June 8, 2008).
779 Agreement between the International Criminal Court and the European Union on Cooperation and Assistance,
ICC-PRES/01-01-06, April 10, 2006, entered into force May 1, 2006, http://www.icc-cpi.int/library/about/officialjournal/ICC-PRES-01-01-06_English.pdf (accessed May 13, 2008). The agreement places a general obligation of cooperation and assistance between the European Union and the ICC and foresees, inter alia, regular exchange of information, cooperation with the OTP, and possible utilization of EU services and offices by the court.
780 See Part II. B.2.c, above.
781 ASP, Report of the Bureau on Cooperation, para. 65.
782 Arrest warrants in the Darfur situation have been outstanding for more than a year, while arrest warrants for leaders of the Lords Resistance Army have been outstanding for some three years.
783 The EU similarly made cooperation with the ICTY a precondition to accession negotiations with Croatia, which certainly helped lead to the arrest of Croatian commander Ante Gotovina in the Canary Islands in December 2005.
784 The ASP Bureau Report does not mince words on this point: In order to generate the necessary political support and pressure, all States Parties should, where relevant, stress the importance of this issue. See ASP, Report of the Bureau on Cooperation, para. 40.
785 Ibid., para. 7, recommendations 42, 45, 48, 49, 50, 51, 65.
786 See, for example, Report of the U.N. Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, S/2004/616, August 23, 2004, http://www.un.org/Docs/sc/sgrep04.html (accessed May 5, 2007), para. 2.
787 The ICC-UN liaison office is discussed briefly above in Part IV.B.2.c.
788 The government appointed one of the suspects, Ahmad Harun, who has remained State Minister for Humanitarian Affairs for Darfur, to a committee whose mandate includes hearing human rights complaints. The Sudanese authorities then released the other suspect, Ali Kushayb, who had been in domestic custody on unrelated charges, for lack of evidence. Khartoum has furthermore refused to cooperate with the ICCs ongoing investigation since the arrest warrants were issued. More recently, the Sudanese ambassador has made statements calling for the ICC prosecutor to be arrested. Sudan demands the arrest and prosecution of the ICC prosecutor, Sudan Tribune, April 7, 2008, http://www.sudantribune.com/
spip.php?article26666 (accessed June 6, 2008).
789 Moreover, the mission took place one week after the ICC prosecutor briefed the council on the warrants in June 2007.
790 For example, the UN secretary-general did not publicly raise the warrants during his visit to Sudan in September 2007. To the detriment of his effectiveness, Ban Ki-moon seems to feel such matters are best relegated exclusively to private discussions. See Warren Hoge, Official Urges Arrest of 2 Darfur Suspects, New York Times, December 5, 2007, http://www.nytimes.com/2007/12/06/world/africa/06darfur.html (accessed June 6, 2008).
791 For example, during a special Security Council summit meeting on peace and security in Africa in late September, a few states parties on the council, namely the United Kingdom, Belgium, and Slovakia, raised the significance of the ICC and the need for cooperation. United Nations Security Council, 5749th Meeting, S/PV.5749, September 25, 2007, http://daccessdds.un.org/doc/UNDOC/PRO/N07/515/72/PDF/N0751572.pdf?OpenElement (accessed November 5, 2007), pp.
6, 11, and 15. In late October 2007, some states parties, following the presentation of the presidents report to the General Assembly, expressly raised the need for Sudan to cooperate with the ICC and/or the need for the courts arrest warrants for Darfur and northern Uganda to be enforced. See Presidents of International Court of Justice, International Criminal Court Present Reports to General Assembly, UN press release, GA/10652, November 1, 2007, http://www.un.org/News/Press/
792 Many delegates to this years ASP session took advantage of fortuitous timing in which the session at UN headquarters coincided with the prosecutors report to the Security Council.
793 In the days leading up to the prosecutors briefing, momentum for a Security Council Presidential Statement picked up considerably. Human Rights Watch discussions with diplomats, New York, early December 2007. While the statement ultimately was unable, at that time, to secure the consensus required due to strong positions by a small number of non-states parties, this should not obscure the accomplishment that the December 2007 Council briefing represented. It also laid the groundwork for such action in the future.
794 The resolution referred Darfur to the ICC and obligates cooperation by Sudan with the court. United Nations Security Council, Resolution 1593 (2005), S/RES/1593 (2005), http://daccessdds.un.org/doc/UNDOC/GEN/N05/292/73/PDF/N0529273.pdf?OpenElement (accessed May 5, 2008), op. para. 2.
795 See, for example, the ASP Bureau reports recommendations 54 and 55 which state, As much as possible, the organs of the Court should schedule their high level visits to New York in such a way as to ensure an equal spread throughout the year and coincide with the most significant and relevant United Nations events; and High-level Court visitors should continue to be available in the margins of such visits to brief the Group of Friends of the International Criminal Court as well as Court membership of regional groups, including on situations and cases. See ASP, Report of the Bureau on Cooperation.
796 During the 62nd Session of the General Assemblys general debate, approximately one-third of states parties interventions discussed the ICC, with some citing the need for cooperation. Coalition for the ICC, Excerpts from the General Debate of the 62nd Session of the General Assembly, 25 September 3 October 2007, http://www.iccnow.org/documents/GeneralDebateExcerpts2007.pdf (accessed June 6, 2008).
797 ASP, Report of the Bureau on Cooperation, recommendation 61.
798 Ibid., recommendations 62, 63, 64, 65, 66, and para. 69.
799 Council Common Position 2003/444/CFSP of 16 June 2003 on the International Criminal Court, http://www.consilium.europa.eu/uedocs/cmsUpload/l_15020030618en00670069.pdf (accessed on April 28, 2008).
800 See Council of the European Union, The European Union and the International Criminal Court, February 2008, http://www.consilium.europa.eu/uedocs/cmsUpload/ICC_internet08.pdf (accessed May 13, 2008), annex 2 (collecting relevant Council of the European Union conclusions).